As a New York family law attorney, I have spoken to many members of the LGBT community over the years who were the non-biological parent of a child conceived by their partner. Until recently, I had to advise them that if they did not adopt the biological child, they would lose their rights to visitation or custody in the event of a breakup with their partner. However, a decision rendered in August 2016 by the Court of Appeals has changed the interpretation of the Domestic Relations Law.
In this case, the petitioner (the non-biological or adoptive parent) in the Court of Appeal cases lacked any biological or adoptive connection to the subject children. The petitioner argued that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70(a). The court agreed that, in light of more recently delineated legal principles, the definition of “parent” established by the Court 25 years ago in Alison D. had become unworkable when applied to increasingly varied familial relationships. They held that where 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 to seek visitation and custody under Domestic Relations Law § 70. In the case before them, the petitioner did have a pre-conception agreement with the biological parent.
While the court did not rule that an agreement was necessary, it would be advisable to consult lawyers knowledgeable in LGBT matters to draft a pre-conception agreement if you want to ensure that you have parental rights of a non-biological child. I would also recommend that both the potential biological and non-biological parent each have their own attorney.
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