In a recent ruling, Debra H. v. Janice R., the New York Court of Appeals — the state's highest court — granted "legal parent" status to a woman, Debra H., whose same-sex partner gave birth to a child during their relationship.
The child was conceived via artificial insemination, with sperm from an anonymous donor, and was born about a month after the two women entered into a "civil union" in Vermont. The court's ruling gives Debra H. standing to seek visitation and/or custody of the son whom she and her former partner, Janice R., had co-parented.
In Part One of this Two-Part Series, I considered the basis for the New York court's ruling — which was grounded on its deference to Vermont's law of parentage: Vermont grants legal parent status to the partners of those who become genetic or adoptive parents while a civil union is in place.
In this column, Part Two in the series, I will discuss an alternative ground upon which the court could have — but refused to — grant recognition of Debra H.'s parental rights: the de facto parentage doctrine, which looks to the functional parent-child relationship in a particular case, and not the formal ties, to determine if someone is a parent.
In refusing to take the de facto parenthood approach, the New York court reaffirmed a longstanding, but unpopular precedent from 1991, Matter of Alison D. v. Virginia M. That decision held that only a child's biological or adoptive parent could seek visitation against the wishes of a fit custodial parent. This reaffirmation means that New York law will, in practice, fail to meet the needs of many non-traditional families.
The New York Court could — and should — have ruled another way. In reaching its holding, it rejected an argument for broader recognition of so-called "functional parents" — those who participate in crucial aspects of parenting without the benefit of a formal status vis-a-vis the child's other parent or the child. It should have accepted that argument, and allowed parenthood to be adjudicated based on factual realities, and not formalities.
Debra H. v. Janice R.: The Ruling and Its Ramifications
As readers may recall from Part One, Janice R. gave birth to a son, M.R., a month after entering into a civil union with Debra H. The degree of co-parenting that occurred is a matter of factual dispute, but it is agreed that the two women lived together with M.R. from the time he was born in 2003 until 2006. Although Debra sought to adopt M.R. as a co-parent, Janice did not allow it. However, even after the couple separated, Debra continued to have significant contact with M.R. — via visitation three times a week and daily telephone contact for about two years — before Janice cut off all contact.
The basic question in this case is whether Debra, like Janice, is M.R.'s "parent" despite the fact that she neither gave birth to him, nor legally adopted him.
As I discussed in Part One, New York's highest court recognized Debra as a legal parent of M.R. in Debra H. v. Janice R. All seven judges agreed that the civil union that Debra and Janice had entered into, prior to M.R.'s birth, devolved legal parent status on Debra. This ruling means that the trial court on remand will now have to resolve various factual disputes and, ultimately, make a determination of what custody and visitation arrangement will be in M.R.'s best interests.
However, Debra also argued that Janice was equitably "estopped" from denying that Debra was also a parent to M.R., given her consent to Debra's functional role in the child's life. (The doctrine of estoppel holds that a party's actions or statements may later preclude him or her from taking a contrary position in court.) Debra was seeking, in essence, the court's recognition of her "de facto" parentage — a status that, if recognized, would enable her to seek custody or visitation, just as legal parentage would.
The trial court agreed that Debra had established a prima facie case (that is, a sufficient initial showing) to invoke equitable estoppel as a means to secure visitation and custody rights, but the intermediate appellate court vacated this ruling.
Although the intermediate appellate court acknowledged that Debra had been "a loving and caring parental figure for the first 2/12 years of [M.R.'s] life," it refused recognition of parental rights on that basis, on the grounds that New York law does not recognize the parental rights of any adult other than a biological or adoptive parent.
The state's highest court affirmed the appellate ruling. The judges were split, but a majority rejected the de facto parentage doctrine as a means to extend parental or quasi-parental rights to anyone other than a legal, biological, or adoptive parent.
Three judges concurred in the result but did not agree with the Alison D. holding. Judges Ciparick and Lippman concluded that Alison D. should be overruled. Judge Smith would not have adopted the de facto parentage doctrine as it was proposed, but urged instead a narrower doctrine — one that would grant parentage to an adult for a child who was conceived through anonymous donor insemination by one member of a same-sex couple who were then living together, with the knowledge and consent of other.
Rejecting De Facto Parentage: Alison D. v. Virginia M.
In Part One of this Series, I discussed the basic law of parentage: Who is a legal parent? In a nutshell, parental rights generally flow from biology, adoption, or marriage to a child's other parent. (And, in New York after this ruling, such rights also flow from a civil union with a child's other parent.)
The alternative argument in this case is that adults who function as parents, within certain circumstances, should also be granted parental rights of custody and visitation. In New York, Section 70 of the Domestic Relations Law allows "either parent" to petition for custody or visitation, the determination of which is to be based on the "best interest of the child." But the statute does not define "parent." And, as noted above, in Alison D. v. Virginia M. the court construed the statute narrowly to include only those adults with formal legal ties to a child via biology or adoption.
In that case, two women, who were living together, decided that one of them would try to conceive a child through artificial insemination. Virginia M. gave birth to a child, and she and Alison D. shared all parenting responsibilities for the first two years of the child's life. After they separated, Virginia allowed visitation for a time, but she eventually stopped contact between Alison and the child.
Alison then sued to be recognized as the child's parent, characterizing herself as a "de facto parent" or, alternatively, as a "parent by estoppel." Although Alison did not give birth to the child, she participated in every other respect in planning for the child's conception and in parenting. (She did not adopt the child, but at the time, it was not clearly established under New York law that a lesbian co-parent could adopt her partner's child, an issue that was later resolved in favor of co-parent adoption in Matter of Jacob (1995).)
In Alison D., the New York Court of Appeals took a very strict view of parentage, noting that "[t]raditionally, in this State it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child, even in some situations where the nonparent has exercised some control over the child with the parents' consent." Alison, in the court's view, was simply a non-parent seeking to displace a fit parent's decision about her child's best interests.
Was the Alison D. Ruling Consistent with the Ruling in Matter of Shondel J. v. Mark D.?
In seeking to have the court overturn Alison D., Debra H. argued that the court had implicitly departed from the hard line it took in 1991 in a 2006 case, Matter of Shondel J. v. Mark D. In that case, the New York Court of Appeals allowed a man who had held himself out as a child's biological father for 4 ½ years to be held liable for child support, even though DNA tests proved he was not genetically related to the child. The court relied on the concept of paternity by estoppel to prevent the man from avoiding child support obligations.
Is it inconsistent for the court to use estoppel principles to determine parentage for child support purposes, but not for purposes of allowing custody or visitation? The court in Debra H. said no. It pointed to a difference in the language of the statute governing child support versus the one governing parental custody — the former specifically directs courts to consider "equitable estoppel" before deciding whether to order paternity testing, while the latter doesn't mention the concept. But the real explanation is that courts often take a broader approach to defining parentage in the child support context, than in the custody/visitation context, for fear of depriving a child of necessary support, particularly where the child is already financially dependent on the parent.
The court in Debra H. defended its affirmation of Alison D. based on one primary goal: "promot[ing] certainty in the wake of domestic breakups." It sought to avoid "disruptive battles over parentage as a prelude to further potential combat over custody and visitation" and hearings that "are likely often to be contentious, costly, and lengthy."
Indeed, the bright-line rule of Alison D. does clarify parental rights in most cases without the need for litigation. But is that the most important goal? Perhaps lost in the pursuit of certainty is the welfare of children who sometimes develop strong relationships with adults who do not fit the clearly demarcated role of "legal parent".
There are, after all, consequences to applying bright-line rules like the one that was reaffirmed in Debra H. De facto parents lose the children they have been raising — and, in many instances today, whom they intended to parent prior to conception — and the children lose an adult with whom they shared a functional parent-child relationship. This latter consequence is especially troubling given the law's commitment, in the custody context, to continuity of care for children.
The Difference That Twenty Years Makes (or Should Make)
Although 1991 — the year that the Alison D. decision was issued — may not seem that long ago, the law regarding same-sex parenting, as well as family law more generally, has undergone a dramatic transformation since then.
In broad brush, several legal and social changes and trends are potentially relevant to the question whether to recognize de facto parentage for some same-sex co-parents:
- Greater judicial and legislative protection for same-sex co-parents through recognition of co-parent adoption, de facto parentage, or intended parentage;
- Greater judicial and legislative reliance on functional, rather than formal, definitions of family;
- Less emphasis on blood and adoption as the exclusive basis for a parent-child relationship; and
- Greater complexity in family formation, fueled in part by reproductive technology and the success of the gay rights movement.
Many of these developments are traceable to the last two decades. Thus, in a real sense, the world that Alison D. and Virginia M. lived in, when their parenting occurred and when the decision in their case came down, is quite different than the one Debra H. and Janice R. live in today. The underlying changes in family form force us to reconsider the doctrines we apply to various families — and to account for all of the diverse kinds of families that we see today.
The court's ruling in Debra H. does provide greater protection for same-sex families — but only if the co-parents have entered into a formal legal relationship, such as a civil union, prior to the child's birth. But this seems to be an unfair restriction in practice — given that New York state does not provide same-sex couples with any right of formal recognition — neither full marriage equality, nor civil union, nor even domestic partnership.
In this context, the reaffirmation of Alison D. means that the lesbian partner who carries the child has all the power — she alone can decide whether to permit her partner to adopt, or whether to consent to shared custody or visitation after a break-up. Yet the couple's decision as to which partner will bear the child may rest on considerations (such as fertility, age, and health) that have nothing to do with which of the two would be a better parent, let alone the only parent. And I would wager that the overwhelming majority of couples, when making the decision to go forward with childbearing, would agree that if they broke up, custody should be shared between tem, regardless of legal formalities. It is this initial sentiment, not post-breakup bitterness, which should be honored by the law.
What Does It Mean to Be a Child's "Parent"? How the Definition Is Changing
The court in Debra H. concluded that "any change in the meaning of 'parent' under our law should come by way of legislative enactment rather than judicial revamping of precedent." It cited statutes in several states that provide specific criteria that a non-parent must meet before gaining standing to seek custody or visitation. Whether or not the court should have dodged the opportunity to sweep more broadly in protecting parent-child relationships, New York's law on this issue is now squarely back in the hands of the legislature.
Family life often changes more rapidly than family law does. But, on important questions of parentage, issues regarding New York families' rights and their legal options deserve consideration by a modern legislature. Among other questions, the New York legislature should now consider these: Do laws crafted in an era in which biology and adoption captured the full range of ways that adults became parents still make sense in an era of increasing same-sex unions, in vitro fertilization, surrogacy, and other modern developments? How can same-sex couples be better protected, as parents, when the law ignores their bond?
If the legislature takes up the call of the court and of gay and lesbian rights advocates to consider the doctrine of de facto parentage, it has many good models provided by other states, as well as by the American Law Institute, for comparison. Let's hope that the legislature focuses on this issue, since it is hard to imagine a more viscerally and practically important question than, Who is a parent?