Parenthood Redefined in New York State

It’s a parenting story you’ve heard many times before: A couple meets and decides to start a family. They live happily for a while, but eventually part ways. Emotions run high and interfere with working out a co-parenting arrangement that works for all involved. Lawyers, nasty custody battles, and a lot of heartache ensue.


This unfortunate scenario was at the heart of two cases decided by New York’s highest court this week. Both involved lesbian parents where the biological mother was attempting to fight off a custody claim from the non-biological parent. In making their argument, the lawyers for the biological mothers relied on a 1991 decision by the court that limited the definition of a “parent” to someone who is either a biological or adoptive relative to the child.

To anyone with even a grade-schooler’s sense of right or wrong this is, of course, patently unfair. We’ve all met that person who makes you wish the right to become a parent was at least as complicated as obtaining a driver’s license or food handler’s card. When has biology ever been enough to determine one’s aptitude for providing for a child?

Fortunately for the children involved in these cases — and for all of New York’s non-biological and non-adoptive parents and their children — the court agreed:

“The definition of ‘parent’ established by this Court 25 years ago … has become unworkable when applied to increasingly varied familial relationships,” wrote Judge Sheila Abdus-Salaam in the court’s decision.

Judge Sheila Abdus-Salaam. Credit: Rick Kopstein/New York Law Journal

Judge Abdus-Salaam goes on in her decision to find that, rather than continue to define parenthood so narrowly, courts should instead examine the original “intent” of parenthood established at the outset of a couple’s decision to start a family. In other words, if a court finds enough evidence that both parents originally agreed to raise their children as co-parents, the non-biological or non-adoptive parent has every right to seek joint custody or visitation rights if and when that relationship terminates.

This decision finally catches New York up to dozens of others in the country that already permit non-biological, non-adoptive and unmarried parents to file for custody claims and visitation rights. The state, then, has finally brought the definition of “parenthood” into the 21st century.

Other states, meanwhile, seem perpetually stuck in a previous era; Michigan’s highest court, for example, recently declined to rehear a case in which a non-biological parent was denied paternity rights by a lower court, meaning biology will continue to be placed on a pedestal in that state.

Fortunately, it seems inconceivable in our post-marriage-equality world that such restrictive definitions of parenthood will last for long. But while we wait for the country’s courts to catch up to the realities of nontraditional family structures, it will continue to be our children who are most affected by our legal system’s growing pains.

A word to the wise, yet unmarried couples-with-children who are living in one of the states with outdated definitions of parenthood: Consider drawing up a legally binding  document stating that partners agree to raise their children jointly. (See the Lambda Legal advice.) Another solution: Get married.

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