Custody and Visitation Rights for Non-Biological Parents in New York

For 25 years, New York followed Matter of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991). In that case, the Court of Appeals held that only a biological or adoptive parent counted as a “parent” with standing to seek custody or visitation under Domestic Relations Law §70. A partner who had helped raise a child but was neither biologically related nor an adoptive parent was, in the eyes of the law, a stranger — with no right to ask a court for custody or even visitation.

The rule fell hardest on same-sex couples. Before marriage equality, these partners often could not marry, and second-parent adoption was not always available or affordable. A couple could plan a pregnancy together, raise a child together for years, and yet only one of them was recognized as a parent. When the relationship ended, the other could be erased from the child’s life overnight.

In 2016, New York’s highest court reversed course. In Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), the Court of Appeals expressly overruled Alison D. The couple had agreed before conception to have a child together. One partner was inseminated, the child was given the other partner’s last name, and the two raised the child jointly. After they separated, the biological mother eventually cut off the non-biological mother’s contact with the child she had helped raise.

The Court held that the older, rigid definition of “parent” was unworkable and unfair to the children of non-traditional families. It ruled that where a partner proves by clear and convincing evidence that the parties agreed to conceive a child and to raise that child together, the non-biological, non-adoptive partner has standing to seek custody and visitation under DRL §70. In a single decision, thousands of New York parents who had been legal strangers gained the right to walk into court and be heard.

“Standing” simply means the legal right to ask the court to decide your case. Without it, a judge never reaches the question of what is best for the child — the petition is dismissed at the door. Under Brooke S.B., a non-biological parent earns standing by proving a pre-conception agreement: that before the child was conceived, the couple agreed together to conceive and to raise the child as co-parents.

The evidence has to be “clear and convincing,” a higher standard than the usual civil burden. Courts look at proof such as:

• Joint decisions about and participation in the fertility or insemination process.
• The child being given the non-biological parent’s surname, or being named after that side of the family.
• Both partners being treated as parents by schools, doctors, family, and friends.
• Written messages, emails, cards, or agreements showing a shared plan to parent together.
• Financial support and day-to-day caregiving by the non-biological parent.

The more contemporaneous and documented the evidence, the stronger the case. This is why putting your intentions in writing — before conception — matters so much.

This is the important limit. The Brooke S.B. Court deliberately decided only the case in front of it — one involving a pre-conception agreement. It expressly declined to decide whether someone who became a parental figure after a child was born, or without an up-front agreement, can also establish standing. That question has been litigated in the years since, with mixed and fact-specific results, and the law in this area is still developing.

What that means in practice: if your parental role began after birth — for example, you married the biological parent and raised the child as a stepchild, or you became a parent figure to a partner’s existing child — your path to standing is far less certain than the classic Brooke S.B. fact pattern. Those cases can still be worth pursuing, but they are harder, and the safest protection is a court order of adoption or parentage.

Winning standing does not mean winning custody. It means you have earned the right to be heard. From there, New York decides custody and visitation the same way it does for any parents: by the best interests of the child under DRL §70. The court weighs each parent’s caregiving history, the stability each home offers, the child’s relationship with each parent, each parent’s willingness to support the child’s bond with the other, and, where appropriate, the child’s own wishes.

A non-biological parent with standing can seek joint or even primary custody, not just visitation. And a court can order parenting time over the other parent’s objection when continued contact serves the child. The point of Brooke S.B. is precisely that these relationships are real and deserve protection — the biological parent does not get an automatic veto. For the framework courts apply, see our overview of child custody laws in New York.

It would be a mistake to treat Brooke S.B. as a substitute for legal parentage. A Brooke S.B. case is a lawsuit — expensive, stressful, fact-dependent, and never guaranteed. It also may not travel: another state is not required to honor New York’s definition of a parent, so a family that moves or travels could find the non-biological parent’s rights questioned all over again.

A second-parent adoption — or a judgment of parentage under New York’s Child-Parent Security Act — produces a court order that makes you a legal parent, full stop. Under the U.S. Constitution’s Full Faith and Credit Clause, adoption orders are entitled to recognition in every state. That certainty is something no custody lawsuit can match. Even married couples are wise to complete one, because a marital presumption of parentage can be challenged in a way an adoption decree cannot. Our guide to LGBTQ parental rights in New York walks through these options in more detail.

If you are building or raising a family as a non-biological parent, a few steps can save you years of heartache later:

• Complete a second-parent adoption or obtain a judgment of parentage. This is the single strongest protection available, and it is worth doing even if you are married.
• Put your intentions in writing before conception. A clear, dated agreement that you are conceiving and raising the child together is powerful evidence if a Brooke S.B. case ever becomes necessary.
• Keep records of your parenting. Save school and medical forms listing you as a parent, photos, messages, and proof of financial support.
• Act early if a relationship is ending. Standing and custody questions are easier to address before contact is cut off than after.