The 12th Annual Battered Mothers Custody Conference May 6th - 8th, 2016 Albany, NY
Nancy S. Erickson, Esq. explains why this NY Court of Appeals decision is "A real victory for battered women and their children"
In this case the Battered Mothers Custody Conference was one of the battered women's organizations on an amicus brief authored by Sanctuary For Families that was cited by the Court in its decision.
"NY Court of Appeals rules on whether a non-biological, non-adoptive partner of a parent of a child can have standing to seek custody -- says yes, but only under narrow circumstances."
In NY law, only a “parent” has standing to seek custody of a child, except under extraordinary circumstances.
So if a woman has a child while in a relationship with someone who is not a biological parent or adoptive parent of that child, does that person have standing to seek custody of the child if they later break up?
Not unless that person fits into a narrow category, says the COA.
The Court’s ruling gives to a non-biological, non-adoptive “parent” standing to seek custody only when that person proves that there was a pre-conception agreement that the partners would raise the child together.
Very few people will be able to prove that there was a pre-conception agreement, but those who can will be afforded standing. This does not mean they will necessarily get custody, but they can fight for it.
This narrow ruling will protect against later partners (later meaning after conception) claiming they have standing to seek custody because they have functioned as a parent in the relationship.
Most importantly, it will protect against later partners who are abusive and who claim they have standing. Various DV groups had been concerned about this issue and had submitted an amicus brief (on which I worked) opposing a broad concept of a “functional parent.”
The cases decided by the COA involved two lesbian couples, but the ruling applies to everyone, no matter their sexual orientation, gender identity, etc.
Note that an abusive biological father still gets standing to seek custody even if he was not married to the mother, wanted her to have an abortion, did not adopt the child, never lived with the mother, abused both the mother and the child, and denied paternity when support was sought.
Under NY law, however, although he can seek (and often get) custody if he abuses the mother (and/or the child), he can’t get custody if he kills the mother.
Please distribute to other interested persons.
Nancy S. Erickson, Esq.