Sept. 2, 2016
New York’s highest state court, the Court of Appeals, ruled August 30th that the former lesbian partner of a woman who gave birth (via artificial insemination) while the couple was cohabiting could qualify as a “parent” for the purpose of seeking custody and visitation rights (Matter of Brooke S.B. v. Elizabeth A. C.C.).
In light of the 2015 decision of the U.S. Supreme Court to order a fifty-state redefinition of “marriage” to include same-sex couples (Obergefell v. Hodges), this may seem like something inevitable—merely a legal mopping-up operation. Actually, it is far more troubling, with implications that extend far beyond same-sex couples.
New York’s Domestic Relations Law says that “either parent” of a child living in the state may apply to a court requesting “the natural guardianship, charge and custody of such child.” In a case similar to the current one 25 years ago (Matter of Alison D. v. Virginia M.), the same court had ruled that “a biological stranger to a child who is properly in the custody of his biological mother” has no standing to seek visitation. Despite having upheld it as recently as 2010, the court explicitly overruled Alison D. this week.
In part, the decision was based on the fact that during the period the couple was together (2006-2010, with the baby boy being born in 2009), same-sex couples could not yet legally marry in New York. According to the opinion, the couple “lacked the resources to travel to another jurisdiction” to enter into a marriage or similar “legal arrangement.”
One is tempted to say that they must have been quite destitute—since the first state to grant civil marriage licenses to same-sex couples (in 2004), Massachusetts, borders on New York state. By the time the child was born, in June 2009, Massachusetts had repealed a 1913 law that had initially prevented many out-of-state couples from marrying there; and New York’s Gov. David Paterson had ordered state agencies to recognize same-sex unions from other states.
In fairness, though, the couple apparently did live in Chautauqua County—at the far western end of the state, about 400 miles from Massachusetts. However, it is only a little over 100 miles from Niagara Falls, Ontario—which was also giving marriage licenses to same-sex couples from the U.S. Meanwhile, New York’s high court had already recognized a right of “second-parent” adoption even for unmarried partners of a biological parent in a case decided in 1995.
All this is to say that, even for a same-sex couple, it may not have been so difficult to establish a legal family relationship by a more traditional means—either a civil marriage or legal adoption.
Family Research Council (FRC) promotes the ideal of the “natural family.” In the natural family, a man and a woman commit to one another in marriage, and their sexual union bears its natural fruit in the birth of children who are biologically related to both parents. Support for the natural family is not just based on abstract principle—there is abundant social science research showing that it tends to result in the best outcomes for children (see this recent blog post reviewing the evidence).
However, we realize that the natural family is not universal, and recognize that parental relationships are sometimes formed without marriage (as in out-of-wedlock births) or without a biological relationship between parent and child (as in adoption). These parents should have their rights respected by the state just as much as those in the more traditional natural family.
However, these have historically been the limits of how legally-recognized “parental” relationships may be established. The court’s decision in Brooke B. smashes through those limits.
Only one of the New York judges, Eugene Pigott, fully acknowledged this. Although he concurred with the outcome of the case, based on its “extraordinary circumstances,” he disagreed with the decision to overrule Alison D. “I would retain the rule that parental status under New York law derives from marriage, biology or adoption,” Pigott wrote. Until now, he said, “Our Court . . . rejected the impulse to judicially enlarge the term ‘parent’ beyond marriage, biology, or adoption.” Instead, they had “consistently interpreted it in the most obvious and colloquial sense to mean a child’s natural parents or parents by adoption.”
The argument for expanding the definition of “parent” to include “de facto parents” who have lived with, cared for, and formed a close personal relationship with a child is simple—namely that it may be “in the best interests of the child” to preserve that relationship even if the adult couple breaks up. This sounds emotionally appealing—but the problem is what it means for parental rights. While parental rights are not absolute—in the case of serious abuse, for example, a parent may be declared “unfit” and have those rights severed—they are normally entitled to great deference.
The court did quote from its 1991 decision in Alison D., which said that “[t]raditionally . . . it is the child’s mother and father who, assuming fitness, have the right to the care and custody of their child,” and granting visitation to a “de facto” parent “would necessarily impair the parents’ right.” Without a biological or adoptive connection to the child, the former partner has no right “to displace the choice made by this fit parent in deciding what is in the child’s best interests.”
The New York court claimed it was still protecting this “substantial and fundamental right” (which it acknowledged as “perhaps the oldest of the fundamental liberty interests”). It did so by saying that it was only recognizing the “parental status” of a non-biological, non-adoptive partner where the person “proves . . . that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents.”
This limitation is small comfort. Libertarians inclined to see this as another step toward “freedom” or “equality” for all sexual preferences, or conservatives inclined to shrug it off as the inevitable consequence of Obergefell, are missing the larger point—which is a massive expansion of the power of the state in general, and of judges in particular.
Judge Pigott addressed the latter point, noting that “other states had legislatively expanded the class of individuals who may seek custody and/or visitation of a child.” In fact, New York had done the same, explicitly extending it by statute to siblings or grandparents—but not to those in the position of the petitioner. If the result seems unfair, “such criticism is properly directed at the Legislature;” but judges had, until now, “refused to undertake the kind of policy analysis reserved for the elected representatives of this State.”
In my view, however, the Legislature should not further expand the definition of “parent,” either. The existence of the natural institution of the family is an inherent check upon the power of the artificial institution of the state. Even when the state does create a parental relationship through a legal act (adoption), it does so only when the natural parents are absent, or there has been a convincing showing, with a strong burden of proof, that they are unfit.
Moving away from the limited definition of families as being formed by marriage, biology, or adoption is a move in the direction of the further deconstruction of the family as an institution. Granting greater power to the government to define or even create “family” or “parental” relationships, meanwhile, is a move toward concentrating greater societal power in the hands of the state across the board.
Both trends should alarm not just social conservatives, but anyone who is concerned about excessive concentrations of power in the hands of the government.