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Journal of Law and Policy

Ilana Sharan

Abstract

On August 30, 2016, the New York Court of Appeals in Brooke S.B. v. Elizabeth A.C.C., expanded the definition of the term “parent,” overruling the twenty-five-year-old bright line rule that limited standing to seek custody or visitation to traditional parents. In 1991, the New York Court of Appeals decided Alison D. v. Virginia M. where they defined “parent” to include only people who have a biological or adoptive relationship with the child, reasoning that the typical family consisted of a husband and wife. In many cases subsequent to Alison D., the court attempted to alleviate the harsh application this rule had on many parents and their children. Finally, based on the major changes in the law and statistics regarding nontraditional families, the court in Brooke S.B. found this traditional definition became “unworkable.” In revisiting the question of what constitutes a parent for custody and visitation purposes, the court held that if a nonbiological, nonadoptive parent, by clear and convincing evidence, can prove a preconception agreement to jointly raise the child, he or she has established standing to seek custody or visitation rights. However, the court did not answer whether a petitioner, in the absence of a preconception agreement, could establish standing for a custody or visitation proceeding. This Note argues that in the absence of a preconception agreement a nonbiological, nonadoptive parent should have the opportunity to establish standing under a functional approach that considers the biological or adoptive parents’ consent, the functional parent’s intent when forming a relationship with the child, and the relationship formed between the child and the functional parent.

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