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Tri-Party Custody in New York: A Glimpse into the Future of Family Law
Tri-party custody, an emerging legal construct where three parties typically encompassing a man, a woman, and another individual collaboratively conceive and raise a child, has increasingly become a focal point in New York’s legal landscape. This arrangement doesn’t just split responsibilities between three people; it demands a rethinking of traditional custody rights, especially when the triad’s dynamics are challenged legally.
To understand the current confusing area of the law, we need to briefly look into the past, as people seeking this article want practical facts rather than abstract thoughts.
In the not-so-distant past, the legal landscape was quite different concerning the rights of same-sex couples. Specifically, until the Marriage Equality Act, the law in this state did not permit same-sex marriages. Moreover, within this context, if a child was biologically related to one partner, the other partner, if unmarried, was not granted the legal right to adopt the child. Consequently, any individual in a same-sex relationship who wasn’t biologically related to a child had no standing to petition for custody or visitation rights, adhering strictly to the New York Court’s definition of “parent” as outlined in the Alison D. decision.
Same-Sex Parents Recognized
This changed with the 2016 decision by the Court of Appeals, in the Matter of Brooke S.B v. Elizabeth, A.C.C. The gist of this decision was that a non-biological woman could be considered the mother of her partner’s child.
I recently reread the Brooke S.B. v. Elizabeth A.C.C. case. As someone who strongly believes in the importance of recognizing the diverse forms of families in today’s world, I remember very distinctly how this case particularly struck a chord with me. It recognized the reality and importance of a non-biological parent.
The case essentially revolved around the definition of a ‘parent’ and the rights associated with that title, especially in non-traditional family structures. As families evolve and change, so should our legal understanding and acknowledgment of them.
The Definition of “Parent” and its Impact on Tri-Party Custody
This concept of “parent” under the law is critical to understanding tri-parent custody. In the Brooke S.B. case, the Court of Appeals looked at the statutory definition of “parent.” Under the law, only a “Parent” can go to court to seek parental rights, such as custody and visitation. This is the concept of “standing.” Now, you can see the impact on tri-party custody. Only a “parent” has “standing” to go to court to get custody or visitation.
The Court made it clear when it determined that a non-biological mother could be a parent, it was not creating a free-for-all, where any non-biologically related person could assert a right to custody or visitation. Instead, the Court recognized that a child may not be best served by restricting the definition of “parent” to traditional heterosexual relationships.
In a significant ruling, the court has expanded the interpretation of the Domestic Relations Law § 70. It now allows non-biological and non-adoptive parents the right to petition for custody and visitation of a child. However, this change comes with a caveat. The court emphasizes that only under specific circumstances can someone be recognized as a “parent” under this law. This is essential, given the inherent rights that biological and adoptive parents hold.
It’s crucial to highlight that while this ruling broadens the definition of a parent, it does so cautiously. The court wants to ensure they aren’t undermining the rights of biological and adoptive parents. As Judge Kaye pointed out in her dissent in the Alison D. case, any expansion to the definition of ‘parent’ should be approached with precision and restraint.
Legal Standing for a non-Biological Parent in a Tri-Party Custody Dispute
Now, that we’ve identified the law and some of our terms, we can discuss where a non-biological parent in a Tri-Party relationship can seek custody or visitation.
Unfortunately, the New York Legislature has not passed any laws on this vitally important topic. And to make matters worse, the top court, the Court of Appeals has not spoken on it. Instead, we have a number of lower court decisions that have taken different positions.
There are a few Tri-Party arrangements but we will focus on the two most common: two mothers and one dad, and two dads with one mother.
If the LGTBQ parties are married there is a presumption of legitimacy. This is a fancy way of saying that a child born to a married couple will be considered the child of both parties in a marriage. In a lesbian marriage where the father is anonymous or has specifically waived his parental rights, both mothers stand on equal footing.
Things are a bit more complicated with a Gay relationship as the biological mother is always known.
The Appellate Division, 4th Department, which handles Western New York, clearly stated that the law does not support Tri-party tri-custodial arrangements. The court was very clear that “simply does not contemplate a court-ordered tri-custodial arrangement.“
A lower court in Suffolk County, on the other hand, found otherwise. In that case a husband and wife formed a triad with another woman. She bore the child and the child was raised by the triad. Then the husband and wife divorced, and the two women moved out and formed a couple. The ex-wife, who was the non-biological mother petitioned for parental rights. This judge found that “Indeed, tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL § 10–a which permits same-sex couples to marry in New York.”
If you are in Western New York, there are no tri-party tri-custodial parental rights but it may be recognized in Suffolk.
Conclusion
I think there may be a solution. The parties to the Triad should get a written custodial agreement drafted by a lawyer and signed by the parties. The 4th Department cases discussed that there was no agreement between the parties. I think that they raised the possibility that the decision may have gone differently if there had been such an agreement.
Since this issue of tri-party tri-custodial parenting arrangements in a triad is still in flux, it is best to be cautious. Before or during the pregnancy it would be smart to get a formal agreement. Then if things do break down, you will at least have a written contract to take to the court. Again, and I stress this, while I think an agreement would solve the problem, ultimately it will be up to the judge to determine. We will remain in this flux until the Legislature acts or the Court of Appeals makes a definitive ruling.
Call Port and Sava for a free 15-minute telephone consultation at (516) 352-2999. We can help you discuss the options available and how to deal with this tricky but vitally important topic.
