September 7, 2016
By: Ned Holstein, M.D., M.S., Founder and Chair of the Board, National Parents Organization
New York State’s highest court recently ruled that an unmarried lesbian woman (“Brooke”) who had helped raise a child with her partner was entitled to seek parenting time in family court after the couple broke up. Brooke was not a biological parent of the child. But the couple had agreed to conceive the child, gave him Brooke’s last name, and taught him to call her “Mama B.” A New York Times editorial hailed this decision as an overdue and rightful expansion of the parenting rights of people in same-sex relationships regardless of whether one of them is not a biological parent of the child. The Court based its decision in part on the research that “reveals the trauma children suffer as a result of separation from a primary attachment figure -- such as a de facto parent -- regardless of that figure’s biological or adoptive ties to the children.” Notice the crucial reference to “a” primary attachment figure, not “the” primary attachment figure. In other words, there can be more than one such parent!
National Parents Organization agrees wholeheartedly, but sees some tricky water ahead. About ten years ago, we wrote an amicus brief for Massachusetts’ highest court, the Supreme Judicial Court, supporting the parenting rights of an unmarried, non-biological lesbian mother (A.H. v. M.P., Docket No. SJC-09815). And we are thrilled that the New York Court recognized the trauma children suffer when they are forcibly separated from established parental figures. This same trauma, and the proven long-term harm it does to children, is one of the most important bases for our advocacy for shared parenting.
Having said all this, celebration is premature in my view. Nobody won any parenting time in this decision. Instead, the only thing Brooke won was the right to have a custody battle and its legal fees. The true test of whether the New York State courts take to heart “the trauma children suffer as a result of separation from a primary attachment figure” is if they begin to order much more shared parenting in heterosexual and same-sex separations alike.
So how will such cases be decided in the New York family courts in the future? If the family courts ignore the underlying principle that children are damaged when they are taken away from a loving parent, they will designate a custodial and a non-custodial parent just as they have for decades in hetero cases. If so, Brooke is likely to exit family court as a non-custodial parent, having the child in her care only every other weekend. As our members know all too well, even this meager award of parenting time will not be enforced on the custodial parent, who can easily find ways to reduce the contact to once per month or even less without fear of legal consequences. Brooke will have won very little indeed, and National Parents Organization will continue to chafe at the hypocrisy of the family courts who pretend to protect the best interest of the child while in fact harming millions of children.
Pardon the cynicism, but if sole custody continues to be ordered, the decision in New York could then be regarded as yet another victory for the bar associations, who have successfully blocked shared parenting in most states. After all, the main effect of last week’s high court ruling would be merely to open the door to lucrative custody battles to a whole new set of litigants -- same-sex parents. Parents like Brook, and her son, would be only slightly better off. Before congratulating the courts on correcting historic wrongs, let’s see them start ordering shared parenting to fit parents, both hetero and same-sex, thus eliminating custody battles and the fees that accrue to the judges’ pals in the bar.
Another possibility is that New York family courts will start ordering shared parenting for same-sex parents, most of whom are women, but will continue to order sole custody to mom alone in most hetero couples. In that case, it will appear that two divorced moms are fine for children, but not a divorced mom plus a divorced dad. This would be the gender bias of the family courts taken to the max!
Looked at from yet another point of view, the recent decision by the New York State Court of Appeals could be viewed as a slippery slope. Isn’t it a little dangerous to start designating non-biological adults as parents of a child? Approving of this is a small departure from our usual stance of supporting the primary rights of biological parents for the simple reason that this usually translates into the best interest of the child. But could this decision be applied too broadly? Then we could see parenting time awarded over the objections of biological parents to nannies who cared for the children most of the time, to daycare providers, or to grandmothers who took over for six months while the parents took a long trip.
The decision by the New York State Court of Appeals is the right decision for the right reasons. But’s let’s see what the family courts do with it before we break out the champagne.
See Robert Franklin’s take on this decision here.