In the Matter of Estrellita A., Respondent,v.Jennifer L.D., Appellant.BriefN.Y.June 2, 2016Nos. APL-2015-00235, APL-2015-00236 Court of Appeals State of New York ESTRELLITA A. Petitioner-Respondent, - against - JENNIFER L. D. Respondent-Appellant. BROOKE S.B. Petitioner-Respondent, - against - ELIZABETH A. C.C. Respondent-Respondent, R. THOMAS RANKIN, ESQ., Attorney for the Child, Appellant. BRIEF OF AMICI CURIAE LAWYERS FOR CHILDREN AND THE CHILDREN’S LAW CENTER IN SUPPORT OF AFFIRMANCE OF THE DECISION IN ESTRELLITA A. AND REVERSAL OF THE DECISION IN BROOKE B. JENNIFER L. COLYER JUSTIN J. SANTOLLI NAZ E. WEHRLI FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, NY 10004 Tel: (212) 859-8000 Fax: (212) 859-4000 Attorneys for Amici Curiae Lawyers for Children and The Children’s Law Center Date Completed: May 11, 2016 -i- CORPORATE DISCLOSURE STATEMENT Proposed Amici Curiae Lawyers for Children and The Children’s Law Center are not-for-profit organizations. Both organizations have no parents, subsidiaries, or affiliates. -ii- TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT ............................................................................... i TABLE OF AUTHORITIES ......................................................................................................... iii STATEMENT OF INTEREST OF AMICI CURIAE.....................................................................1 PRELIMINARY STATEMENT .....................................................................................................2 ARGUMENT...................................................................................................................................7 I. THE CONTINUITY OF THE PARENT-CHILD ATTACHMENT BOND IS CRITICAL TO A CHILD’S DEVELOPMENT AND WELL-BEING AND SHOULD BE PRESERVED IN THE CHILD’S BEST INTEREST..................................7 A. A Biological or Legal Connection Between Parent and Child Is Not Necessary for the Development of Strong Attachment Bonds........................................................9 B. Severing a Relationship with a Parent Causes Severe Damage...................................12 II. ALISON D. HAS IMPOSED UNJUSTIFIABLE HARDSHIPS ON CHILDREN AND SHOULD BE OVERTURNED ...............................................................................16 III. NEW YORK COURTS HAVE THE NECESSARY COMPETENCE TO ADJUDICATE CLAIMS OF NON-BIOLOGICAL, INTENDED PARENTHOOD ................................................................................................................23 IV. THE AVAILABILITY OF SECOND-PARENT ADOPTION OR THE RIGHT FOR SAME-SEX COUPLES TO MARRY DOES NOT ADEQUATELY PROTECT CHILDREN.....................................................................................................31 CONCLUSION..............................................................................................................................37 -iii- TABLE OF AUTHORITIES Cases Page(s) Alison D. v. Virginia M., 77 N.Y.2d 651 (1991) ..................................................................................passim Anonymous v. Anonymous, 20 A.D.3d 333 (1st Dep’t 2005) (Sweeny, J., concurring).................................20 In re Baby Boy C., 84 N.Y.2d 91 (1994) ...........................................................................................25 Beth R. v. Donna M., 19 Misc. 3d 724 (Sup. Ct. N.Y. County 2008) .............................................19, 20 Bethany v. Jones, 378 S.W.3d 731 (Ark. 2011) ..................................................................21, 31 n.5 In re Bonfield, 780 N.E.2d 241 (Ohio 2002) ........................................................................31 n.5 C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)............................................................................31 n.5 In re C.M., 6 Misc. 3d 361 (Sup. Ct. N.Y. County 2004) ...............................................19, 20 In re Christian N., 132 A.D.3d 470 (1st Dep’t 2015) .......................................................................28 In re Christopher S., 173 Misc. 2d 824 (Fam. Ct. Duchess County 1997) ....................................27, 28 In re Clifford K., 619 S.E.2d 138 (W. Va. 2005)......................................................................31 n.5 Debra H. v. Janice R., 14 N.Y.3d 576 (2010) ..................................................................................passim In re Denise B., 2005 NY. Misc. LEXIS 3456 (Fam. Ct. Suffolk County Sept. 19, 2005)..........................................................19 -iv- Cases Page(s) In re Diana E., 20 A.D.3d 370 (1st Dep’t 2005) .....................................................................5 n.2 In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).........................................................................21 E.N.O. v. L.M.M., 429 Mass. 824 (1999) .........................................................................................22 In re Gilbert A., 261 A.D.2d 866 (4th Dep’t 1999).......................................................................27 In re H.M., 14 N.Y.3d 521 (2010) ...................................................................................25, 26 In re H.M., 76 A.D.3d 528 (2d Dep’t 2010)..............................................................26, 29 n.4 Matter of H.S.H-K., 533 N.W.2d 419 (Wis. 1995).......................................................22, 29, 30, 31n.5 Jean Maby H. v. Joseph H., 246 A.D.2d 282 (2d Dep’t 1998)........................................................5 n.2, 27, 28 Jones v. Jones, 884 A.2d 915 (Pa. Super. Ct. 2005)...............................................................31n.5 In re Juanita A., 15 N.Y.3d 1 (2010) .......................................................................................24, 25 Kinnard v. Kinnard, 43 P.3d 150 (Alaska 2002) ............................................................................31n.5 Kulstad v. Maniaci, 220 P.3d 595 (Mont. 2009)............................................................................31n.5 Latham v. Schwerdtfeger, 802 N.W.2d 66 (Neb. 2011) ..........................................................................31n.5 In re Luis Hugo O., 129 A.D.3d 976 (2d Dep’t 2015)....................................................................5 n.2 -v- Cases Page(s) Marquez v. Caudill, 656 S.E.2d 737 (S.C. 2008) ...........................................................................31n.5 Mason v. Dwinnell, 660 S.E.2d 58 (N.C. Ct. App. 2008)..............................................................31n.5 Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010)...........................................................................31n.5 In re Multari, 287 A.D.2d 764 (3d Dep’t 2001) (Peters, J., concurring) ..................................20 In re Multari, 731 N.Y.S. 238 (2d Dep’t 2001) (Peters, J., concurring) ...................................29 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..................................................................................17, 23 Ramey v. Sutton, 362 P.3d 217 (Ok. 2015).........................................................................21, 31 n.5 In re Shondel J. v. Mark D., 7 N.Y.3d 320 (2006) ...........................................................................5 n.2, 25, 26 T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001).....................................................................................21 In re Tropea, 87 N.Y.2d 727 (1996) ...................................................................................15, 16 V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) .............................................................................21, 22 Statutes N.Y. Dom. Rel. Law ch. 95, § 10-a, 2011 N.Y. Laws 749................................17, 31 N.Y. Dom. Rel. Law § 70 (McKinney 1988) ....................................................16, 18 N.Y. Dom. Rel. Law § 110 (McKinney 2010) ........................................................31 -vi- Statutes Page(s) Dom. Rel. Law § 116(1) (McKinney 2004) ......................................................34 n.6 Dom. Rel. Law § 116(2) (McKinney 2004) ......................................................34 n.6 Dom. Rel. Law § 116(3) (McKinney 2004) ......................................................34 n.6 Other Authorities American Academy of Pediatrics, Committee on Early Childhood, Adoption and Dependent Care, Developmental Issues for Young Children in Foster Care, 106 Pediatrics 1145 (2000) ...................................................7, 8, 12 American Academy of Pediatrics, Committee on Pyschosocial Aspects of Child and Family Health, Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 339 (2002) .............................................10, 13 American Academy of Pediatrics, Family Pediatrics: Report of the Task Force on the Family, 111 Pediatrics 1541 (2003) .............................................10, 11 Allan Schore, Effects of a Secure Attachment Relationship on Right Brian Development, Affect Regulation, and Infant Mental Health, 22 Infant Mental Health J. 7 (2001)......................................................................8 Anne Brewaeys et al., Donor Insemination: Child Development & Family Function in Lesbian Mother Families, 12 Hum. Reprod. 1349 (1997)......................................................................11, 12 Beverly James, Handbook for Treatment of Attachment-Trauma Problems in Children (1994) ..........................................................................7 n.3 Carlos A. Ball, Rendering Children Illegitimate in Former Partner Parenting Cases: Hiding Behind the Façade of Certainty, 20 Am. U. J. Gender Soc. Pol’y & L. 623 (2012) ..............................................30 D’Arcy L. Reinhard, Recognition of Non-Biological, Non-Adoptive Parents in Arkansas, Florida, Mississippi, and Utah: A De Facto Parent Doctrine to Protect the Best Interests of the Child, 13 J. Gender Race & Just. 441 (2010) ..................................................................8 -vii- Other Authorities Page(s) Daniel J. Siegel, The Developing Mind: How Relationships and the Brain Interact to Shape Who We Are (1999)........................................................9 Douglas Davies, Child Development: A Practitioner’s Guide (1999)...........................................10 Fiona L. Tasker & Susan Golombok, Growing Up in a Lesbian Family: Effects on Child Development (1997) ...................................................13 Gary J. Gates, Demographics of Married and Unmarried Same-Sex Couples: Analyses of the 2013 American Community Service, Williams Inst., (Mar. 2015), http://williamsinstitute.law.ucla.edu/wp- content/uploads/Demographics-Same-Sex-Couples-ACS2013-March- 2015.pdf ........................................................................................................35, 36 Gary J. Gates, LGBT Parenting in the United States, Williams Inst., (Feb. 2013), http://williamsinstitute.law.ucla.edu/wp- content/uploads/LGBT-Parenting.pdf ................................................................32 Henny M. W. Bos et al., Same-Sex and Different-Sex Parent Households and Child Health Outcomes: Findings from the National Survey of Children’s Health, 37 J. Dev. & Behavioral Pediatrics 179 (2016)..................................................11 Hum. Rights Camp., How Much Does Adoption Cost?, http://www.hrc.org/resources/how-much-does-adoption-cost ...........................33 J.R. Corbin, Reactive Attachment Disorder: A Biopsychosocial Disturbance of Attachment, 24 Child Adoles. Soc. Work J. 539 (2007) .............8 Joan B. Kelly & Michael E. Lamb, Using Child Development Research to Make Appropriate Custody & Access Decisions for Young Children, 38 Fam. & Conciliation Cts. Rev. 297 (2000) ..............7, 14, 15 John Bowlby, Attachment and Loss, vol. I (2d ed. 1982), available at http://abebe.org.br/wp-content/uploads/John-Bowlby-Attachment- Second-Edition-Attachment-and-Loss-Series-Vol-1-1983.pdf............................7 Katharine T. Bartlett, Rethinking Parenthood As An Exclusive Status: The Need For Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879 (1984)..................................................14 -viii- Other Authorities Page(s) Leslie M. Singer et al., Mother-Infant Attachment in Adoptive Families, 56 Child Dev. 1543 (1985) .................................................................10 Martha Kirkpatrick et al., Lesbian Mothers & Their Children: A Comparative Study, 51 Am. J. Orthopsychiatry 545 (1981) ..............................13 Mary Ann Manson, The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do About It (1999)...........................................10 Melvin Konner, Childhood (1991) ............................................................................7 Michael E. Lamb, Placing Children’s Interests First: Developmentally Appropriate Parenting Plans, 10 Va. J. Soc. Pol’y & L. 98 (2002) ...................................................................14 Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. C.R. & C.L. 201 (2009)..................................34 Nancy D. Polikoff, From Third Parties to Parents: The Case of Lesbian Couples and Their Children, 77 Law & Contemp. Probs. 195 (2014) ........12, 13 Nancy D. Polikoff, The New Illegitimacy: Winning Backwards in the Protection of the Children of Lesbian Couples, 20 Am. U. J. of Gender Soc. Pol’y & the L. 721 (2012)....................................25 Nat’l Res. Council & Inst. of Med., From Neurons to Neighborhoods: The Science of Early Childhood Development (Jack P. Shonkoff & Deborah A. Phillips eds., 2000) ....................................9, 12 Parenting in America, Pew Rsch. Cntr., Dec. 17, 2015, http://www.pewsocialtrends.org/2015/12/17/1-the-american- family-today/.......................................................................................................17 Rudolph Schaffer, Making Decisions About Children: Psychological Questions and Answers 35 (2d ed. 1998) .............................................................8 Shelly A. Riggs, Implications of Attachment Theory for Judicial Decisions Regarding Custody and Third-Party Visitation, 41 Fam. Ct. Rev. 39 (2003) ................................................................................15 -ix- Other Authorities Page(s) Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond Hierarchies Within Lesbian Adoptive Families, 20 Child & Adolescent Soc. Work J. 159 (2003).........................................10, 11 The Decline of Marriage and Rise of New Families, Pew Rsch. Cntr., Nov. 18, 2010, http://www.pewsocialtrends.org/files/2010/11/pew- social-trends-2010-families.pdf ..........................................................................17 United States Census Bureau, Families and Living Arrangements: Living Arrangements of Adults, at Table AD-2, https://www.census.gov/hhes/families/data/adults.html ....................................35 Wendy Wang & Kim Parker, Record Share of Americans Have Never Married, Pew Rsch. Ctr., Sept. 24. 2014, http://www.pewsocialtrends.org/2014/09/24/record-share-of- americans-have-never-married/ ..........................................................................36 William F. Hodges, Interventions of Children of Divorce: Custody, Access, & Psychotherapy (2d ed. 1991) .............................................................14 -1- STATEMENT OF INTEREST OF AMICI CURIAE Lawyers For Children (“LFC”), founded in 1984, provides free legal and social work services to children in custody, visitation, paternity, guardianship, adoption, abuse, neglect, and voluntary foster care placement proceedings in New York City. LFC attorney-social worker teams will provide services to children and young adults in over 3,000 New York City cases this year. LFC is one of two organizations selected by the NYS Unified Court System to provide representation to the children who are assigned counsel in custody and visitation proceedings in New York City Family Court. In addition, LFC publishes guidebooks and other materials for both children and legal practitioners, conducts professional legal and social work training sessions, and works to reform systems affecting vulnerable children. LFC’s unique insight into the issues raised in this case is a product of over thirty years of experience representing children and articulating the child’s perspective in thousands of high-conflict custody and visitation cases. The Children’s Law Center (“CLC”), founded in 1997, provides free interdisciplinary representation to children in custody/visitation, guardianship, domestic violence, and connected child protective cases in New York City. CLC’s mission is to give a child a strong and effective voice in a legal proceeding that has a critical impact on his or her life. The cases CLC handles are varied and complex and have a direct and substantial impact upon the lives of children, determining -2- such issues as where and with whom they will live, whether or not they will visit a parent, grandparent, or sibling, and who will be their legal guardian. CLC’s extensive involvement in high-conflict custody, visitation, and paternity cases informs its analysis of how the courts can protect and promote the best interests of New York’s children. PRELIMINARY STATEMENT At the center of these two cases are two young children, ages six and seven, who stand to lose their second parent absent court intervention, because their second parent is an intended parent rather than a biological or adoptive one. Because losing a parent can have far-reaching, devastating consequences for a child’s mental health and development, the family court should have the authority to examine the parent-child relationship and determine whether it is in the child’s best interest to have that relationship continue. The biological mothers in both cases seek to use Alison D., where this Court enunciated a restrictive rule that only biological or adoptive parents have standing to bring a petition seeking visitation against a fit custodial parent, to terminate a parent-child relationship they intentionally fostered between the intended parent and the child. Alison D. has -3- already harmed New York children, and has the potential to harm thousands more.1 The Court’s decision in Alison D. was premised on the notion that “traditionally, in this State it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child.” Alison D. v. Virginia M., 77 N.Y.2d 651, 656 (1991). In the twenty-six years since that decision was rendered, what was “traditionally” done is no longer the norm for a large percentage of New York’s children. More and more same-sex couples bring children into the world as the only two parents of those children. Although those couples jointly decide to conceive and raise the child, intending to act as co-parents, many non-biological parents do not adopt the child-some because they do not know to initiate adoption proceedings, some because they do not realize that this is the only way to assure full parental rights for a non-biological parent in New York, and some because they simply cannot afford the costs associated with an adoption. Over and over again, the children of these couples fall between the cracks, their parental relationships unprotected by New York courts. It is time for this Court to fix this 1 The continued vitality of this Court’s decision in Alison D. in today’s changed legal and social environment is squarely presented in Brooke B. The Appellate Division, Second Department’s holding in Estrellita A., however, can be affirmed without revisiting Alison D. by relying on the doctrine of judicial estoppel. Amici urge the Court to overrule Alison D. in Brooke B., and in both cases should the Court reach that issue in Estrellita A. -4- situation and allow the Family Courts to stop turning their backs on these children. It is time to reverse Alison D. The restrictive rule announced in Alison D. allows one parent to unilaterally terminate a relationship between a child and the other parent even when terminating that relationship is inconsistent with the child’s best interests. It is cases like this one, where the non-biological/non-adoptive parent is the child’s intended (and only) second parent, the biological parent has fostered and created that parental relationship, and the second parent has been held out to the world as the child’s parent, that make plain the injustice done to children by Alison D. Alison D. does not allow a court to consider evidence that a positive and nurturing parental relationship exists between a child and the child’s second parent. Social science literature conclusively establishes that children form significant attachment bonds to parents early in life, and that forcefully severing those bonds can cause significant emotional harm to the child. It is irrelevant from the child’s perspective whether the parent is biological, adoptive, or intended. Yet, the rule of Alison D. has caused child after child to be deprived of a bonded, loving relationship with his or her only other parent. In 2010, this Court in dicta reaffirmed Alison D. to “promote[] certainty” and “predictability of parental identity.” Debra H. v. Janice R., 14 N.Y.3d 576, 594 (2010). Those are laudable goals but the result was the absolute opposite -5- effect-leaving too many children (like the child at the heart of this case) vulnerable to suddenly learning that the person who has always been his or her “parent” is no longer permitted to continue that role. In Debra H., this Court found a way for the child to maintain a relationship with his non-biological parent by extending comity to Vermont civil union law. While the child in Debra H. was able to dodge the bullet that Alison D. would otherwise have meant to that child’s relationship with his parent, too many other children would not be so lucky. Despite the concerns of the Debra H. majority that an equitable estoppel remedy would be fraught with uncertainty, New York courts have regularly used the doctrine of equitable estoppel to affirm the parental rights and obligations of a man held out to be a child’s father regardless of the child’s biological parentage.2 By barring the use of equitable estoppel to establish parental rights and obligations for same-sex couples in the custody and visitation context but endorsing it for same-sex couples in the support and paternity context, this Court has created an illogical set of rules that fails to adequately value and protect nontraditional 2 See, e.g., In re Shondel J. v. Mark D., 7 N.Y.3d 320 (2006) (“New York courts have long applied the doctrine of estoppel in paternity and support proceedings. Our reason has been and continues to be the best interests of the child.” (citing Jean Maby H. v. Joseph H., 246 A.D.2d 282, 285 (2d Dep’t 1998)); In re Luis Hugo O., 129 A.D.3d 976, 977 (2d Dep’t 2015) (petitioner estopped from challenging acknowledgment of paternity where, although daughter knew he was not her biological father, she had no other “father,” and he lived with her as her father and subsequently visited regularly); In re Diana E., 20 A.D.3d 370 (1st Dep’t 2005) (father who lived with child’s mother for ten years and then regularly visited was estopped from challenging paternity to avoid support payments which were in the child’s best interest). -6- families. First, it is illogical that a non-biological parent who failed to adopt can be deemed a parent for the purpose of providing financial support, but must otherwise be denied a chance to continue a relationship with that child under Alison D. Second, New York courts have from time to time recognized parenthood through equitable estoppel in the context of opposite-sex couples seeking custody and visitation, but have consistently held that they are barred from doing so in the same-sex couple context by this Court’s ruling in Alison D. Third, under Alison D., children of unmarried same-sex couples who do not pursue adoption are unfairly stigmatized, and deprived of their second parent on the whim of their biological parent. To remedy these problems, this Court should overrule Alison D. and permit a non-biological parent to establish standing to seek custody or visitation, when so doing would be in the child’s best interest. Accordingly, the Court should affirm the Appellate Division, Second Department’s decision in Estrellita A. and reverse the Appellate Division, Fourth Department’s decision in Brooke B. -7- ARGUMENT I. THE CONTINUITY OF THE PARENT-CHILD ATTACHMENT BOND IS CRITICAL TO A CHILD’S DEVELOPMENT AND WELL-BEING AND SHOULD BE PRESERVED IN THE CHILD’S BEST INTEREST Child development research unequivocally demonstrates that children form strong bonds of attachment to their parents early in life, and that these bonds become stronger as the children develop.3 See, e.g., Melvin Konner, Childhood 84-87 (1991); Joan B. Kelly & Michael E. Lamb, Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, 38 Fam. & Conciliation Courts Rev. 297, 298 (2000) (“Infant-parent attachments promote a sense of security, the beginnings of self-confidence, and the development of trust in other human beings.”). Decades of research conclusively establish that the attachment between children and their parents has a profound effect on children’s development. See, e.g., John Bowlby, Attachment and Loss, vol. I (2d ed. 1982), available at http://abebe.org.br/wp-content/uploads/John- Bowlby-Attachment-Second-Edition-Attachment-and-Loss-Series-Vol-1-1983.pdf. The American Academy of Pediatrics has explained that “[a]ttachment to a primary caregiver is essential to the development of emotional security and social 3 An “attachment relationship” is defined as a “reciprocal, enduring, emotional, and physical affiliation between a child and a caregiver” through which a child forms his or her “concepts of self, others, and the world.” Beverly James, Handbook for Treatment of Attachment-Trauma Problems in Children 1-2 (1994). -8- conscience.” Am. Acad. of Pediatrics, Developmental Issues for Young Children in Foster Care, 106 Pediatrics 1145, 1146 (2000). There is considerable consensus among studies in the field of child attachment that children become strongly bonded with familiar caregivers at about six months old. D’Arcy L. Reinhard, Recognition of Non-Biological, Non-Adoptive Parents in Arkansas, Florida, Mississippi, and Utah: A De Facto Parent Doctrine to Protect the Best Interests of the Child, 13 J. Gender Race & Just. 441 (2010) (citing Rudolph Schaffer, Making Decisions About Children: Psychological Questions and Answers 35 (2d ed. 1998)). Separation after this age is traumatic for children. Id. Attachment relationships are more than just love and affection; they are a major environmental factor that shapes the development of children’s brains. See J.R. Corbin, Reactive Attachment Disorder: A Biopsychosocial Disturbance of Attachment, 24 Child Adoles. Soc. Work J. 539, 539 (2007) (“Early attachment experiences are critical for the developing human infant, its developing brain, and the enduring constitutional traits that influence the child’s experience throughout life.”); Allan Schore, Effects of a Secure Attachment Relationship on Right Brian Development, Affect Regulation, and Infant Mental Health, 22 Infant Mental Health J. 7, 10 (2001) (“[T]he maturation of these adaptive right brain regulatory capacities is experience dependent, and that this experience is embedded in the attachment relationship between the infant and primary caregiver.”); -9- Daniel J. Siegel, The Developing Mind: How Relationships and the Brain Interact to Shape Who We Are 67-120 (1999). In addition, “what young children learn, how they react to the events and people around them, and what they expect from themselves and others are deeply affected by their relationships with parents.” Nat’l Res. Council & Inst. of Med., From Neurons to Neighborhoods: The Science of Early Childhood Development, 226 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000). Indeed, the parent-child relationship “shape[s] the development of self-awareness, social competence, conscience, emotional growth and emotion regulation, learning[,] and cognitive growth.” Id. at 265. These studies unequivocally demonstrate that children attach to their parents in a myriad of ways, primarily through satisfaction of their emotional and psychological needs. As set forth in detail below, disruption of those bonds can have devastating consequences for a child. A. A Biological or Legal Connection Between Parent and Child is Not Necessary for the Development of Strong Attachment Bonds. The lack of a biological or legal connection does not impact the benefit of the attachment relationship between a child and the person who is held out to be that child’s parent. It is well established that a child can develop strong attachment bonds to a parent, even where the child is not linked to the parent by biology or -10- adoption. See, e.g., Douglas Davies, Child Development: A Practitioner’s Guide (1999); Mary Ann Manson, The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do About It 89 (1999); Leslie M. Singer et al., Mother-Infant Attachment in Adoptive Families, 56 Child Dev. 1543, 1547 (1985). The fact that infants can develop strong attachment relationships with intended parents who have no biological or adoptive ties to them is well-supported by social science studies. See, e.g., Am. Acad. of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341, 341 (2002) (finding that “[c]hildren’s optimal development seems to be influenced more by the nature of the relationships and interactions within the family unit than by the particular structural form it takes”); Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond Hierarchies Within Lesbian Adoptive Families, 20 Child & Adolescent Soc. Work J. 159, 167-68 (2003) (concluding that “legal parent status” was not a “defining factor[] contributing to the attachment hierarchy”). The fact that a child’s parents are a same-sex couple in no way alters the manner in which attachment relationships are formed and the lack of importance biological or adoptive links play in the formation of strong attachment bonds. See Am. Acad. of Pediatrics, Family Pediatrics: Report of the Task Force on the Family, 111 Pediatrics 1541, 1550 (2003) (concluding “that parental sexual -11- orientation per se has no measureable effect on the quality of parent-child relationships”); see also Anne Brewaeys et al., Donor Insemination: Child Development & Family Function in Lesbian Mother Families, 12 Hum. Reprod. 1349, 1358 (1997) (concluding that the non-biological parent in a same-sex couple “was regarded by the child as just as much a ‘parent’ as the father in the heterosexual families”); Henny M. W. Bos et al., Same-Sex and Different-Sex Parent Households and Child Health Outcomes: Findings from the National Survey of Children’s Health, 37 J. Dev. & Behavioral Pediatrics 179, 185 (2016) (“The present study contributes to the mounting evidence that children reared by same-sex parents fare at least as well as those reared by different-sex parents on a variety of measures used to assess psychological adjustment.”). Studies of families comprised of same-sex couples have found that the “quality of care was the salient factor in the establishment of attachment hierarchy” and that “legal parent status” was not a “defining factor[] contributing to the attachment hierarchy.” Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond Hierarchies Within Lesbian Adoptive Families, supra, at 167-68; see also Anne Brewaeys et al., Donor Insemination, supra, at 1358 (“The lack of a biological or adoptive link does not impact a child’s feelings for the same-sex parent.”). Indeed, “among the lesbian mothers, the quality of the parent-child -12- interaction did not differ significantly between the biological and the [non- biological] mother.” Id. at 1354. Thus, the fact that a child’s second parent is not a biological or adoptive parent has no bearing on whether a child has established parental attachment bonds (fostered by the child’s other parent) that are devastating to lose. It is plainly in the child’s best interest that New York courts be freed to adjudicate visitation petitions by non-biological parents and evaluate the quality and nature of the extensive interactions between the child and his or her intended parent in order to determine the child’s best interest. B. Severing a Relationship with a Parent Causes Severe Damage. It is paramount that a child’s relationship with his or her parents not be interrupted; disruption in the relationship is “often detrimental” to a child’s development. See Am. Acad. of Pediatrics, Development Issues for Young Children in Foster Care, 106 Pediatrics 1145, 1145-46 (2000). Indeed, research into the experience of foster children explains that “[p]aramount in the lives of these children is their need for continuity with their primary attachment figures.” See id. A continuous relationship with primary attachment figures serves to “buffer [a] young child[] against the development of serious behavior problems, in part by strengthening the human connections.” Nat’l Res. Council & Inst. of Med., supra, at 265; see also Nancy D. Polikoff, From Third Parties to Parents: The -13- Case of Lesbian Couples and Their Children, 77 Law & Contemp. Probs. 195, 218 (2014) (summarizing cases holding that “biological ties are not as important as parent-child relationships that give young children emotional stability”) (citation and internal quotation marks omitted). Thus, the devastating loss experienced by a child upon disruption of an attachment bond occurs no matter whether the parent is a biological parent, or a non-biological parent. When same-sex couples separate, children are affected in the same way as any other children whose parents separate. See Am. Acad. on Pediatrics: Committee on Pyschosocial Aspects of Child and Family Health, Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 339, 339 (2002) (“[A] considerable body of professional literature provides evidence that children with parents who are homosexual can have the same advantages and the same expectations for health, adjustment, and development as can children whose parents are heterosexual.”); Martha Kirkpatrick et al., Lesbian Mothers & Their Children: A Comparative Study, 51 Am. J. Orthopsychiatry 545, 550 (1981). A twenty-year study in the United Kingdom of twenty-five children being raised by lesbian couples found that cessation of the parent-child bond between a child and a lesbian psychological parent “can cause [the child] extreme distress.” Fiona L. Tasker & Susan Golombok, Growing Up in a Lesbian Family: Effects on Child Development 12 (1997). Thus, the fact that a parent is not connected to the child -14- by biology or adoption does nothing to lessen the harmful emotional effects of terminating the parent’s relationship with the child. See William F. Hodges, Interventions of Children of Divorce: Custody, Access, & Psychotherapy 8-9 (2d ed. 1991) (disruptions in the parent-child relationship are “a particularly devastating experience” for the child); Michael E. Lamb, Placing Children’s Interests First: Developmentally Appropriate Parenting Plans, 10 Va. J. Soc. Pol’y & L. 98, 111-13 (2002) (“[C]hildren who are deprived of meaningful relationships with one of their parents are at greater risk psychosocially, even when they are able to maintain relationships with their other parents.”). As disruptive as a separation can be, maintaining contact after a child’s parents separate promotes healthy child development. Studies have found that children whose parents are divorced have “at every developmental level experience[d] sadness and even severe depression if they do not have frequent visits with the noncustodial parent.” Katharine T. Bartlett, Rethinking Parenthood As An Exclusive Status: The Need For Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879, 907 (1984); see Lamb, supra at 111-13 (“[T]here is substantial evidence that children are more likely to attain their potential when they are able to develop and maintain meaningful relationships with both of their parents, whether or not the two parents live together.”). Moreover, “children who are deprived of meaningful relationships with one of their parents -15- are at greater risk psychosocially, even when they are able to maintain relationships with the other of their parents.” Joan B. Kelly & Michael E. Lamb, Using Child Development Research to Make Appropriate Custody & Access Decisions for Young Children, 38 Fam. & Conciliation Cts. Rev. 297, 303 (2000); see also Shelly A. Riggs, Implications of Attachment Theory for Judicial Decisions Regarding Custody and Third-Party Visitation, 41 Fam. Ct. Rev. 39, 41 (2003) (“[P]rolonged or permanent separation from an attachment figure can seriously injure and fragment the individual’s sense of self.”). Social science studies therefore conclusively show that allowing a prolonged separation between a child and his or her parent (whether biological or non- biological) can have severe, negative consequences for development. Automatically denying non-biological parents standing to seek custody and visitation under this Court’s ruling in Alison D. will not further the child’s best interest, but rather serves to deprive a child of the “benefits from ‘the mature guiding hand and love of a second parent,’” which this Court has found to be important for children. See In re Tropea, 87 N.Y.2d 727, 737 (1996) (citation omitted) (holding that in relocation disputes, courts must consider each case on its merits “with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.”). -16- As Tropea recognizes, family courts are fully capable of considering individual cases on their merits, weighing facts to determine whether a particular outcome is in a child’s best interest. Id. at 738-39. Indeed, the Family Court in Estrellita A. already performed that inquiry after concluding that she had already been adjudicated a parent at the request of the child’s biological parent. This Court should reverse and remand to permit the family court to conduct that hearing in Brooke B., and affirm the Appellate Division, Second Department’s ruling in Estrellita A. II. ALISON D. HAS IMPOSED UNJUSTIFIABLE HARDSHIPS ON CHILDREN AND SHOULD BE OVERTURNED Alison D.’s restrictive rule that only biological or adoptive parents can have standing under Section 70 of the DRL to bring custody or visitation petitions causes serious hardships for New York children. Alison D. v. Virginia M., 77 N.Y.2d 651, 657 (1991). The Alison D. Court discussed the issue in terms that, read today, reflect the very different world that existed twenty-six years ago. For instance, the Alison D. Court pointed out that “traditionally in this State it is a child’s mother and father” who may seek custody and visitation. Id. at 656. More and more frequently, children are not raised by a biological “mother and father” in the “traditional” sense. In 1980, 61% of children were living in a “traditional” family with two married parents, in 2008 about half (52%) of all adults in this -17- country were married, and today less than half (46%) are. Parenting in America, Pew Rsch. Cntr., Dec. 17, 2015, http://www.pewsocialtrends.org/2015/12/17/1- the-american-family-today/ (last visited Mar. 3, 2016); The Decline of Marriage and Rise of New Families, Pew Rsch. Cntr., Nov. 18, 2010, http://www.pewsocialtrends.org/files/2010/11/pew-social-trends-2010-families.pdf (last visited Mar. 4, 2016). Moreover, the legal rules governing the treatment of LGBT individuals and same-sex couples has also changed greatly since 1991. For instance, following the Court’s decision in Debra H., the law governing relationships among same-sex couples in New York and across the United States has changed greatly. In 2011, the Marriage Equality Act guaranteed the rights of same-sex couples to marry in New York. See N.Y. Dom. Rel. Law ch. 95, § 10-a, 2011 N.Y. Laws 749. In 2015, the Supreme Court recognized that the right of same-sex couples’ to marry is guaranteed by the United States Constitution. See Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015). While the Alison D. majority did not foresee the world that was coming, the late Judge Judith Kaye did. In her dissent, Judge Kaye described the predicament that children would face as a result of the Court’s inflexible rule that did not make room for nontraditional families. Presciently, Judge Kaye wrote: [T]he impact of today’s decision falls hardest on the children of [nontraditional] relationships, limiting their -18- opportunity to maintain bonds that may be crucial to their development. The majority’s retreat from the courts’ proper role-its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account-compels this dissent. Id. at 658 (Kaye, J. dissenting). In urging that the Court promote the welfare of children by considering what might be in their best interest, Judge Kaye urged a broader reading of the term “parent” in DRL Section 70. Id. The narrow reading of the term “parent” by the Alison D. majority has caused the relationship between children and their intended second parents to be placed at the mercy of the other parent, and rendered New York courts unable to protect children from losing their relationships with their second parent. The “certainty” desired by Alison D. is brutal for New York children, and, actually creates uncertainty for children whose relationships with their parents may be severed with no recourse. The “bright-line rule” of Alison D. creates the impermissible situation where one parent may unilaterally terminate a relationship (fostered and developed by that parent) between a child and the child’s other parent. See N.Y. Dom. Rel. Law § 70 (McKinney 1988) (the “court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness . . .”). Preventing courts from examining the best interest of the child and acting consistently with that interest imposes an -19- “injustice” on the child. In re C.M., 6 Misc. 3d 361, 370 (Sup. Ct. N.Y. County 2004). Alison D. has harmed children across New York by depriving them of the chance for a relationship with a parent who has, in case after case after case, been intimately involved since conception. In C.M., the injustice was particularly stark where the same-sex couple had two children using assisted reproductive technology and the non-biological mother adopted only one of the children before the couple separated. Therefore, the court held there would be a Section 70 hearing with respect to the adopted child but not as to his sister, who was deemed a “biological stranger” to her second parent. Respectfully, a rule that results in one sibling having access to two parents while the other does not, is manifestly unfair and has no place in New York jurisprudence. Id.; see also Beth R. v. Donna M., 19 Misc. 3d 724, 733-34 (Sup. Ct. N.Y. County 2008) (“If the concern of both the legislature and the Court of Appeals is what is in the child’s best interest, a formulaic approach to finding that ‘parent’ can only mean a biologic or adoptive parent may not always be appropriate.”); In re Denise B., 2005 NY. Misc. LEXIS 3456, at *5 (Fam. Ct. Suffolk County Sept. 19, 2005) (dismissing petition for visitation by same-sex intended mother because “[g]iven the law as it exists, the court is unfortunately constrained to find that petitioner lacks standing to seek visitation with the child who has enjoyed a close and loving relationship with -20- petitioner since infancy, with no consideration as to any detriment such a harsh result will have on this child”) (emphasis added). Courts all across the state have been crying out for this Court to permit them the leeway to protect parent-child relationships created with the consent and support of the biological/adoptive parent. See, e.g., Anonymous v. Anonymous, 20 A.D.3d 333, 333 (1st Dep’t 2005) (Sweeny, J., concurring) (“[I]n recognizing the primacy of the rights of the biological parent, the Court of Appeals has defined a rigid construct which concomitantly ignores the reality of the relationships that nurture and develop a child.”); In re Multari, 287 A.D.2d 764, 771 (3d Dep’t 2001) (Peters, J., concurring) (“If in custody and visitation disputes, common sense, reason and an overriding concern for the welfare of a child are to prevail over narrow selfish proclamations of biological primacy, the assertion of equitable estoppel by a nonbiological or nonadoptive parent must be given credence by the courts.”); Beth R., 19 Misc. 3d at 731-32 (noting that after Alison D., courts have “continued to deny the proactive efforts of a nonbiological, nonadoptive domestic partner . . . to obtain custodial rights” while on an parallel track using equitable estoppel as a defense where a parent seeks to avoid child support obligations); C.M., 6 Misc. 3d at 362 (“Certainly a recurring theme throughout all these standing cases is the injustice they work upon the children. In almost all of these cases it is -21- claimed that the children have established family-like relationships and emotional ties to the nonparent.”). Courts in numerous other states have likewise recognized that maintaining a relationship with an intended non-biological parent can be essential to a child’s wellbeing. See, e.g., Ramey v. Sutton, 362 P.3d 217, 221-22 (Ok. 2015) (holding that the non-biological mother stood in loco parentis where she was “intimately involved in the conception, birth and parenting of their child, at the request and invitation of [the biological mother]”); Bethany v. Jones, 378 S.W.3d 731, 738 (Ark. 2011) (non-biological mother stood in loco parentis to a child who she co- parented including as a stay-at-home mom for three years); In re E.L.M.C., 100 P.3d 546, 560 (Colo. App. 2004) (“[I]nherent in the bond between child and psychological parent is the risk of emotional harm to the child should the relationship be significantly curtailed or terminated . . .”); T.B. v. L.R.M., 786 A.2d 913, 919 (Pa. 2001) (where a non-biological mother acted as the parent for over three years with the fostering and consent of the biological mother, she stands in loco parentis and may petition for custody and visitation); V.C. v. M.J.B., 748 A.2d 539, 550 (N.J. 2000) (“At the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them. That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family -22- members as a result of shared daily life.”); E.N.O. v. L.M.M., 429 Mass. 824, 829 (1999) (recognizing “that children of nontraditional families, like other children, form parent relationships with both parents, whether those parents are legal or de facto” and explaining that “[t]he only family the child has ever known has splintered. The child is entitled to be protected from the trauma caused by the disruption of his relationship with the [non-biological parent]”); Matter of H.S.H- K., 533 N.W.2d 419, 437 (Wis. 1995) (stating that permitting an intended parent to seek visitation and custody is in “a child's best interest by preserving the child's relationship with an adult who has been like a parent”). These courts recognize, as this Court should, that when a biological or adoptive parent consents to and fosters a parent-child relationship between a child and that child’s non-biological parent, the biological parent no longer has the ability to unilaterally terminate that relationship if doing so would be inconsistent with the child’s best interest. See V.C., 748 A.2d at 554 (“By virtue of her own actions, the legal parent’s expectation of autonomous privacy in her relationship with her child is necessarily reduced from that which would have been the case had she never invited the third party into their lives. Most important, where that invitation and its consequences have altered her child’s life by essentially giving him or her another parent, the legal parent’s options are constrained.”). -23- In Obergefell v. Hodges, the Supreme Court of the United States held that the right of same-sex couples to marry “is part of the liberty promised by the Fourteenth Amendment,” and was also constitutionally protected under the Fourteenth Amendment’s equal protection clause. 135 S. Ct. 2584, 2603 (2015). In finding a constitutional right to same-sex marriage, Justice Kennedy explained that “[t]he nature of injustice is that we may not always see it in our own times,” and that “new insights and societal understanding can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” Id. at 2598, 2603. Twenty-six years of jurisprudence under Alison D. has provided ample evidence that it imposes unjustifiable hardships on children and their second parents in nontraditional families, while providing no meaningful benefit. This Court should overturn its antiquated precedent to provide the full panoply of rights to the children of same-sex couples. See id. at 2600 (“Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”). III. NEW YORK COURTS HAVE THE NECESSARY COMPETENCE TO ADJUDICATE CLAIMS OF NON-BIOLOGICAL, INTENDED PARENTHOOD Day in and day out, New York family courts adjudicate fact specific issues underlying custody and visitation petitions, and employ the doctrine of equitable -24- estoppel in various contexts, recognizing the harm that can be done to a child by severing an acknowledged parent-child relationship. It is clear that these courts equally possess the competence and experience to adjudicate claims of equitable estoppel in the context of petitions for custody and visitation brought by intended second parents. Family courts have for decades applied equitable estoppel to disputes including paternity suits, support petitions, and child custody and visitation cases. Each of these hearings requires an individualized determination regarding whether a given parental figure, or a person who claimed a parental relationship, in fact had a parent-child bond with the subject child. See In re Juanita A., 15 N.Y.3d 1, 5-6 (2010) (application of equitable estoppel in paternity proceedings is appropriate “when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship”). The determination sought here is the same type of determination that the family court is already making; it is expert and uniquely situated to make it. This Court should free the Family court to do what it does best to protect children’s best interest vis-à-vis an intended second parent. Paternity disputes. In the paternity context, New York courts commonly use equitable estoppel to prevent a potential father from denying paternity to avoid support obligations where the man has established a functional parent-child -25- relationship. See Juanita A., 15 N.Y.3d at 6. (equitable estoppel protected the parent-child relationship formed between a non-biological father and a child against the mother’s attempt to terminate that relationship); Shondel J., 7 N.Y.3d at 326 (same); In re Baby Boy C., 84 N.Y.2d 91, 102 (1994) (equitable estoppel protects “the status interests of a child in an already recognized and operative parent-child relationship” even in the absence of a biological or adoptive relationship). Simply put, “[t]he child of two heterosexuals who are not married has two parents. The child of two lesbians deserves the same.” See Nancy D. Polikoff, The New “Illegitimacy:” Winning Backward in the Protection of the Children of Lesbian Couples, 20 Am. U. J. of Gender Soc. Pol’y & the L. 721, 740 (2012). Depriving children of same-sex couples from having two parents is patently unjust and punishes the child by depriving him or her of a parent because the child was born to a same-sex couple. As such, the family court should be empowered to make a declaration of parentage for the child of same-sex couples the same way it does for heterosexual couples, using principles of equitable estoppel, regardless of biology. Child Support. In In re H.M., 14 N.Y.3d 521 (2010), which was decided on the same day as Debra H., this Court decided a child support case where “a biological parent s[ought] child support from her former same-sex partner.” The -26- majority held that despite the decision in Alison D., the family court had jurisdiction to entertain the request for child support and the “inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child’s parent.” Id. at 527. On remand from this Court, the Second Department found that the petition alleged sufficient facts to “warrant[] a hearing in the Family Court on the issue of whether E.T. should be equitably estopped from denying her responsibility to support the subject child.” In re H.M., 76 A.D.3d 528, 531 (2d Dep’t 2010). It is simply illogical that a second parent can be deemed a parent by a court using equitable estoppel under this Court’s jurisprudence for child support, but not for custody and visitation. If a non-biological, non-adoptive second parent can be recognized as a parent for financial support, it is in the best interest of the child that she be treated as a parent for all purposes. There is no logical reason to refuse to invoke the same doctrine to avoid injustice when the issue is emotional support. See, e.g., Shondel J., 7 N.Y.3d at 330 (“The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial may leave the child in a worse position than if that support had never been given.”) (emphasis added). There are no grounds that support this Court simply picking and choosing which parental rights and obligations it wants to protect for children who have non- biological, non-adoptive intended parents. -27- This double standard is particularly troubling for the children who are caught in its grip. It is a sad truth that many children whose parents are no longer together are acutely aware of whether a non-custodial parent is paying child support. A system that finds a child’s parent to be a “parent” for purposes of paying child support but a “non-parent” for purposes of seeking custody or visitation is a system that creates anger and confusion for the children who love those parents and wish to continue to have a relationship with them. Visitation and Custody. In the custody and visitation context, some New York courts have refused to “blindly apply[]” Alison D. and have instead, in certain circumstances, permitted a non-biological parent to invoke the doctrine of equitable estoppel. See, e.g., In re Gilbert A., 261 A.D.2d 866, 867 (4th Dep’t 1999) (holding that an intended father was allowed to present evidence under the doctrine of equitable estoppel to pursue visitation rights, although it seemed apparent that he was not the child’s biological father); Jean Maby H. v. Joseph H., 246 A.D.2d 282, 288-89 (2d Dep’t 1998) (holding that an intended parent in a heterosexual couple could invoke the doctrine of equitable estoppel to preserve his relationship with the child); In re Christopher S., 173 Misc. 2d 824, 829 (Fam. Ct. Duchess County 1997) (appropriate to invoke equitable estoppel in a custody proceeding where “petitioner has supported and nurtured [the child] as his own and has developed a strong parental bond with him”). Both Jean Maby H. and -28- Christopher S. arose out of facts similar to the case at bar, but occurring within opposite-sex couples. In both cases, the non-biological fathers were aware that the children were not biologically theirs, and sought visitation on the grounds that they had developed a strong parent-child bond with the child with the mother’s consent, and had been held out at all times and by all concerned as the father. Jean Maby H., 246 A.D.2d at 282-83; Christopher S., 173 Misc. 2d at 824, 827. There is no principled basis to carve out custody and visitation cases involving the children of same-sex couples from the protection of the equitable estoppel doctrine. Not Every Third Party Can Prove Intended Parenthood. The numerous jurisdictions that have permitted non-biological, non-adoptive intended second parents to seek visitation and custody have promulgated factors that enable the court to discern a parental relationship, as opposed to that of a close friend, a caretaker, or a close relative. These doctrines free courts to examine all of the facts surrounding the creation and operation of a given family, and consider factors that go to the special intimate relationship of parenthood. New York courts have already employed this sort of analysis in various circumstances. See In re Christian N., 132 A.D.3d 470, 470 (1st Dep’t 2015) (equitable estoppel prevented father from seeking a genetic marker test because “the child believes that petitioner is his father” and that “for the first three years of the child’s life, the father maintained a father-son relationship with him, held himself out to be the father of -29- the child, permitted the child to call him ‘daddy’ and provided the mother with support for the child”); In re Multari, 731 N.Y.S. 238, 244 (2d Dep’t 2001) (Peters, J., concurring) (“To effectively establish standing [under equitable estoppel principles, a] nonbiological or nonadoptive parent . . . must show, inter alia, that the actions or encouragement of the biological or adoptive parent caused the creation of the parental bond between the petitioner and child in the first instance; that he or she has assumed ‘the full panoply of parental obligations . . . [; and] that the child is [now] actually psychologically bonded or dependent upon that person as a ‘parent.’”) (citations omitted).4 This Court should be assured that the family court has all of the competence needed to make intended parent determinations once it is free to do so. One of the earliest tests to determine whether an individual is an intended parent requires the parent to prove: (1) That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the 4 Not just any third party can access the court to obtain an estoppel hearing. The Second Department has held that to warrant a hearing on the issue of equitable estoppel the petitioner needs to set forth facts alleging that “the same sex partner of a child’s biological mother consciously chooses, together with the biological mother, to bring that child into the world through AID, and where the child is conceived in reliance upon the partner’s implied promise to support the child, a cause of action for child support under Family Court Act article 4 has been sufficiently alleged.”). In re H.M., 76 A.D.3d at 530- 31. -30- child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. Matter of H.S.H-K., 533 N.W.2d at 437. This sort of analysis addresses the uncertainty that concerned the Debra H. Court by requiring the court to evaluate whether a person is actually, in fact, parenting a child with the other parent’s consent. Other jurisdictions have found that using this sort of structured analysis promotes the certainty that concerned the Debra H. Court. Having used a multifactor inquiry to determine whether an individual can claim standing as an intended parent for decades, Wisconsin has experienced a lack of appellate litigation regarding the issue of who has standing to claim parental rights. See Carlos A. Ball, Rendering Children Illegitimate in Former Partner Parenting Cases: Hiding Behind the Façade of Certainty, 20 Am. U. J. Gender Soc. Pol’y & L. 623, 654 (2012). The Supreme Court of New Jersey has adopted a similar multifactor test and, there too, “courts have not experienced undue difficulty in determining whether a particular petitioner satisfies the functional parent criteria.” Id. There is no reason to believe that New York’s experience would be markedly different from these states, as it has not been different in the circumstances in which estoppel is already used to establish parenthood. Moreover, courts in states -31- all over the nation have also found workable analyses to determine whether they should grant standing to an intended non-biological parent in a given case.5 New York courts are no less equipped than the courts in these states to make the findings required to determine whether an individual is an intended parent. IV. THE AVAILABILITY OF SECOND-PARENT ADOPTION OR THE RIGHT FOR SAME-SEX COUPLES TO MARRY DOES NOT ADEQUATELY PROTECT CHILDREN It is true that same-sex couples and their families have more legal protections than they did when this Court decided Debra H. Same-sex couples have the right to marry, creating a legal parentage for their children. N.Y. Dom. Rel. Law ch. 95 § 10-a, 2011 N.Y. Laws 749. That is great news for children whose parents decide to marry. Marriage laws, however, fail to protect the thousands of children whose parents choose not to marry, as well as those whose parents separated before the Marriage Equality Act was enacted. Same-sex couples can also now adopt. N.Y. Dom. Rel. Law § 110 (McKinney 2010). But, 5 See, e.g., Ramey v. Sutton, 362 P.3d 217, 221-22 (Ok. 2015); Latham v. Schwerdtfeger, 802 N.W.2d 66, 72 (Neb. 2011); Bethany v. Jones, 378 S.W.3d 731, 738 (Ark. 2011); Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010); Kulstad v. Maniaci, 220 P.3d 595 (Mont. 2009); Mason v. Dwinnell, 660 S.E.2d 58 (N.C. Ct. App. 2008); Marquez v. Caudill, 656 S.E.2d 737 (S.C. 2008); Jones v. Jones, 884 A.2d 915 (Pa. Super. Ct. 2005); In re Clifford K., 619 S.E.2d 138 (W. Va. 2005); C.E.W. v. D.E.W., 845 A.2d 1146, 1151 (Me. 2004); In re Bonfield, 780 N.E.2d 241 (Ohio 2002); Kinnard v. Kinnard, 43 P.3d 150 (Alaska 2002); Matter of H.S.H-K., 533 N.W.2d at 437. -32- economic and other considerations make this legal right an incomprehensive protection for children of same-sex couples. A child cannot control whether his or her parents marry, or pursue a second parent adoption. Of course, the failure of an intended parent to pursue a second- parent adoption or marry her partner may involve any number of factors. For example, a couple may not be able to afford the fees that an adoption requires. See Gary J. Gates, LGBT Parenting in the United States, Williams Inst., at 1, (Feb. 2013), available at http://williamsinstitute.law.ucla.edu/wp- content/uploads/LGBT-Parenting.pdf (finding that same-sex couples with children are twice as likely as comparable opposite-sex couples to live near the poverty line). Parents simply may not know of the need to adopt to secure the non- biological parent’s rights; they may believe that putting both parents’ names on a birth certificate is sufficient to establish legal parentage, for example. Or, knowing the law of Alison D., a biological parent who chooses to co-parent with her same- sex partner can plan in advance to invoke the doctrine at her whim and tear her child away from his or her second mother at a moment’s notice, leaving her without an avenue to preserve the parent-child relationship. See Debra H., 14 N.Y.3d at 599-600 (biological mother, an attorney, conducted research and concluded that entering into a Vermont civil union would not, under New York law, enable her partner to later claim parenting rights and obligations with respect -33- to their son). For New York courts to sanction such reprehensible behavior that hurts children simply is wrong. Second-Parent Adoptions Are an Inadequate Safeguard. The availability of second parent adoption has proven to be ineffective to protect children’s interests in maintaining stable relationships with their parents. There are numerous reasons why same-sex couples may decide not to pursue a second-parent adoption. Children participate in none of these decisions. For instance, second-parent adoption is time consuming, expensive, requires a lawyer, and subjects a family to court scrutiny. See Hum. Rights Camp., How Much Does Adoption Cost?, http://www.hrc.org/resources/how-much-does-adoption-cost (last visited Jan. 26, 2016) (describing that, on average, second parent adoptions cost from $2,000 to $3,000, including home study expenses which range between $1,000 and $2,000, and legal fees of approximately $1,000). Some couples may not be savvy enough to know that New York allows second-parent adoption and that, absent a second- parent adoption, a non-biological parent cannot secure legal rights vis à vis their child. Case law demonstrates that in some cases it is not until after a couple separates that the child’s second parent realizes that, absent second-parent adoption, she has no legal rights with respect to her child. Prior to separation, it may have seemed nonsensical to that parent that she would need “to adopt her own -34- child” to secure her legal rights. See Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. C.R. & C.L. 201, 267 (2009). Depriving a child’s second-parent of the ability to seek custody and visitation effectively punishes the child by depriving him or her of a key parental relationship because the parent lacked the legal foresight or resources to pursue a second-parent adoption. Even if a couple attempts second-parent adoption, intervening events can prevent the adoption from being consummated.6 The possibility of intervening events preventing the consummation of the second-parent adoption results in second-parent adoption being an ineffectual method of insuring that the best interest of the child are adequately protected. See Debra H., 14 N.Y.3d at 612 (Smith, J., concurring) (stating that it “can[not] be said that adoption by the nonbiological parent . . . is an adequate recourse, for adoption is possible only by the voluntary act of the adopting parent, with the consent of a biological one”). 6 There are several reasons why private-placement adoptions may take many months to complete. For instance, New York State Courts frequently require a three-month waiting period as part of the private-placement adoption process, which begins to run upon the filing of the adoption petition. See N.Y. Dom. Rel. Law § 116(1) (McKinney 2004). After the waiting period expires and the necessary filings have been submitted, courts require an investigation of the proposed adoptive family. See N.Y. Dom. Rel. Law § 116(2) (McKinney 2004). The investigator has thirty days to file a report. See N.Y. Dom. Rel. Law § 116(3) (McKinney 2004). Additionally, courts will often hold a hearing on the adoption, which can be scheduled several months after the statutory requirements were otherwise completed. -35- The Marriage Equality Act Does Not Adequately Protect Children. The fact that same-sex couples have been able to marry in New York since 2011 does not necessarily protect the best interest of their children. Not all couples choose to marry. Indeed, the data reflects that since this Court’s decision in Debra H. an ever increasing number of children are being raised by parents who are not married. See United States Census Bureau, Families and Living Arrangements: Living Arrangements of Adults, at Table AD-2, https://www.census.gov/hhes/families/data/adults.html (last visited Feb. 5, 2016). Moreover, the availability of marriage fails to protect the rights of non-biological parents whose relationships terminated before the Marriage Equality Act was enacted. For most children who end up in the unenviable position of the child in this instant case, relying on marriage ignores the substantial number of children being raised by same-sex couples, and, for that matter, opposite-sex couples, who are unmarried and plan to remain unmarried. Recent studies have estimated that all “same-sex-couple households include almost 210,000 children under age 18 in their homes.” Gary J. Gates, Demographics of Married and Unmarried Same-Sex Couples: Analyses of the 2013 American Community Service, Williams Inst., at 5, Mar. 2015, http://williamsinstitute.law.ucla.edu/wp- content/uploads/Demographics-Same-Sex-Couples-ACS2013-March-2015.pdf -36- (last visited Mar. 7, 2016). A substantial number of these children are raised by unmarried parents. See id. at 15 (noting that in 2013, 15% of unmarried same-sex couples are raising children under 18). There are myriad reasons why any couple may decide not to marry, from economic considerations to attitudes regarding the institution of marriage. See Wendy Wang & Kim Parker, Record Share of Americans Have Never Married, Pew Rsch. Ctr., Sept. 24. 2014, http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have- never-married/ (last visited Mar. 7, 2016) (“[S]hifting public attitudes, hard economic times and changing demographic patterns may all be contributing to the rising share of never-married adults.”). A child should not have his or her relationship with a second parent jeopardized because of the increasingly common decision couples make not to marry. CONCLUSION For all of the foregoing reasons, and in the best interest of the child in this instant case and children similarly situated, we respectfully submit that this Court should affirm the Appellate Division, Second Department's decision in Estrellita A., reverse the Appellate Division, Fourth Department's decision in Brooke B. as well as overrule Alison D., thereby recognizing the important interest of children in maintaining relationships with the people they have been led to believe are their parents, and who have acted as their parents with the knowledge, and consent of their biological or adoptive parents. Dated: New York, New York May 11,2016 -37- FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP By ~~o~kd% _______ _ Justin J. Santolli Naz E. Wehrli One New York Plaza New York, New York 10004-1980 (212) 859-8000 Attorneys for Amici Lawyers For Children and The Children's Law Center 11513407
