Family Law

There Used To Be Only 2 Ways To Become A Parent in New York, Now There Are 6!

How did this come to pass? An interview with Eric Wrubel, a renowned Manhattan matrimonial attorney.

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You’ve heard of the phrase that it “takes a village.”  But New York is putting that old adage — occasionally offered by its prominent former Senator-turned Secretary of State — to the test. Because with New York’s latest move, you can forget single parenting. Or even co-parenting with just one other person. In fact, you may be in position to parent a child with two, or even three, other people.

That’s because the definition of who counts as a “parent” in New York has quickly evolved in the last several years. I interviewed Eric Wrubel, a renowned Manhattan matrimonial attorney, who has been successfully working to change the way that the New York courts view and protect families.

The Dark Ages – Denying Parental Rights to Same-Sex Couples. 

Back in the day, long before we got along with North Korea, it was possible to be recognized in New York as a parent “by estoppel.” That meant that if you had been parenting a child (despite not being genetically related to the child or adopting the child), and someone challenged your parental rights, your reliance interests may have given you a defensible claim that estopped the courts from taking away your parental rights.

Then, in 1991, along came the case of Alison D. v Virginia M. In that case, a same-sex female couple split, and one of the women — the biological mother of the couples’ child — sought to cut off visitation between her ex-partner and their child. That’s pretty harsh. And, worse, the court went ahead and ruled for the biological mom. It went further and, despite there being no definition of a “parent” in New York’s family code at the time, the court went on to create a bright line test, ruling that there are only two ways to be a parent: (1) by being biologically related to a child; and (2) by adopting the child through the normal legal process.

As you can imagine, many bright line rules from 1991 have lost their appeal in 2018. Here, that’s particularly true because of individuals and couples who have turned to assisted reproductive technology to grow their families. The 1991 rule would mean that for same-sex female couples who used a sperm donor to conceive, the non-biological mother was subject to losing out on parental rights, unless an expensive and burdensome adoption process had been completed.

Getting The Court To Overrule Itself

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When the case of Brooke S.B. came along with similar facts as the 1991 case, Wrubel saw a chance to change the trajectory of New York case law. Plus, it didn’t hurt that New York courts had seen a host of Democrat-appointed judges since 1991, who might be more receptive to arguments that protect LGBT couples.

Similar to Alison D., in Brooke S.B., a same-sex female couple conceived a child through the assistance of a sperm donor. The non-biological mother, Brooke, was there for the birth, and stayed home with their son the first year of his life. The boy recognized both women as his mothers. When the relationship fell apart, the biological mother left with the couples’ son and eventually cut off contact between the child and her ex-partner Brooke. Not being biologically related to the child, not being legally married in the pre-Obergefell world, and not having adopted the child, Brooke had no recourse under the old Alison D. rules.

But Wrubel didn’t give up. He represented the child on appeal, and a team of dedicated attorneys fought for the court to rethink its earlier, excessively narrow definition. Wrubel and his team were ultimately successful, with the court expressly rejecting its old precedent, and recognizing that another way for a person to become a parent is by being part of a preconception plan for that child. At the same time, the court reinvigorated the old estoppel doctrine, which takes into account the reliance interests of non-biological parents.

After Brooke S.B., there were now four ways to become a parent in New York — biology, adoption, preconception agreement, and equitable estoppel. But wait, there’s more!

Judicial Estoppel

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The companion case to Brooke S.B. is Estrellita A. v Jennifer L.D. where the biological parent filed an application for child support from her ex-same-sex partner claiming the ex was a parent. After the court awarded child support, non-bio mom said, if I am paying child support, I want custody. Seems fair. But bio mom then tried to argue in that context against the ex being a parent. The court declared that since the ex was found to be a parent for child support purposes, bio mom was estopped from claiming she was not a parent for custody purposes. Yay, judicial estoppel. That’s #5.

What About Marriage?

In a totally separate case, Wrubel asked a New York court to explicitly recognize that the marital presumption of parenthood (the legal presumption that the spouse of a person having a child is also a parent to that child) applied equally to same-same couples. After Obergefell and another case called Pavan, it was no surprise that the New York courts agreed. So same-sex couples also receive a presumption of parentage based on marriage — a sixth category of establishing oneself as a parent!

So How Many Parents Can One Child Have?

Wrubel himself got to test out his own legal precedent, when he was approached by a gay couple that had entered into a surrogacy arrangement with a woman that included a plan for all three to parent the child. Of course, for the case to end up in litigation meant that the three-party relationship had obviously hit some bumps in the road. The woman who gave birth attempted to argue that the biological father was not entitled to any parental rights.

In New York, the gestational carrier or birth mother has parental rights by statute. She has to renounce those rights if an adoptive couple are to be the two parents of the child. However, Wrubel successfully got a court to recognize in a judgment that all three — the gestational mother, the bio dad, and his husband — were parents of the child, and all had equal parental rights to the child. That’s going to be a lot of birthday presents, along with more frustrated parental admonishments to “go ask your mom… or your other dad!”

I interviewed Wrubel about these issues, and more. So you can hear more of Wrubel’s work, and how New York’s legal recognition of families has quickly been evolving on this week’s episode of the podcast I Want To Put A Baby In You.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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