By Mercedes Matias, J.D. Class of 2017 Touro Law Review Senior Staff Member
On August 30, 2016, in Brooke S.B. v. Elizabeth A.C.C, the New York Court of Appeals held “[w]here a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing, as a parent, to seek visitation and custody,” effectively overturning the 25-year rule of Alison D., over nontraditional families.
Decided in 1991, the holding in Alison D. v. Virginia M., stated that where there lacked a biological or legal relationship between the unmarried third-party partner and the subject child, as required under Domestic Relations Law § 70, the third-party lacked standing to seek visitation or custody regardless of the previous nurturing relationship between them. The Court of Appeals further justified its position citing the constitutional rights of biological parents to be free from the imposition of third-party rights, which could “limit or diminish the right of the concededly fit biological parent to choose with whom her child associates.” However, the Court of Appeals clearly stated that where a legal adoption or marriage of the parties existed, the nonbiological parent had standing to sue. Subsequent New York decision supported this holding over the next 20 years.
In 2010 in the case of Debra H. v. Janice R., the Court of Appeals provided a glimmer of hope for nontraditional families. Debra H. and Janice R., a same-sex couple who prior to the marriage agreed to conceive a child. Janice H. gave birth to the subject child after their civil union in Vermont. Under Vermont Law, both Debra H. and Janice R. were considered the parents of the child. When the parties separated, Debra H.’s visits with the child were frustrated by Janice R. Debra H. petitioned for joint legal and physical custody. The New York Court of Appeals held that under the doctrine of comity, Vermont’s recognition of Debra H. as a “parent” conferred standing for her to petition for custody and visitation in the State of New York. This case did not overrule Alison D. and did not resolve the lingering issues of nontraditional families who were unable to marry or seek formal adoptions of their children within the State of New York.
After Alison D. and Debra H., questions lingered: What happens to children who live in different homes, with loving adults who lack a formal legal arrangement? How can their interests be protected when their family structures are viewed as invalid? Brooke S B. has unlocked the door for nontraditional families. The limited nature of the holding identifies only partners that have mutually agreed to conceive and raise a child together.
Under this rule the non-biological, non-spouse, non-legal parent, a partner would fail to meet the threshold of the Brooke S.B., rule thus falling into the “nonparent” category. For example, if a committed couple disagreed if they should conceive a child, but the intended biological parent proceeded with insemination, and then prior to the birth the non-agreeing partner changed his or her mind, the now nonbiological parent would lack standing to sue in family court. This partner would also fail if the change of heart came after the child was born. Another example would be where a couple decided to conceive and raise a child but prior to the birth of the child they breakup, and a new party assumes the responsibilities and acts as the parent. This leaves partners at risk of losing their children if they fail to enter formal relationships recognized by the State. The court’s failure to impose a functional test for standing leaves petitioners and respondents without sure footing.
The holding in Brooke S.B. is revolutionary because it gives the nonbiological parent a mechanism to gain standing but it has failed to provide a more inclusive rule recognizing the diverse configuration of families.
 Brooke S.B. v. Elizabeth A.C.C., 61 N.E. 3d 488 (N.Y. 2016).
 Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991).
 See Matter of Jacob, 660 N.E.2d 397 (N.Y.1995) (conferring standing to seek custody or visitation upon unmarried, non-biological partners—including a partner in a same-sex relationship—who adopted the child, even under the Courts restrictive definition of “parent”); see in Matter of Shondel J. v. Mark D., 853 N.E.2d 610 (N.Y. 2006) (holding that a nonbiological parent is estopped from denying paternity if the child detrimentally relied on that representation and the conferring of the third-party with standing equal to that of the biological parent).
 Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010).
 Id. at 186.
 Id. at 196 (citing the definition of comity in Ehrlich-Bober & Co., Inc. v. University of Houston, 404 N.E.2d 726 (N.Y. 1980)).
 Brooke S.B., 61 N.E. at 488.