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Thursday, December 12, 2013

In re Custody of B.M.H. and De Facto Parentage Rights in New York

Blended families have increasingly become the norm over the last several decades, as the divorce rate has crept past 50 percent. 

This has meant that many adults have found themselves assuming "de facto parentage" as it relates to their stepchildren, in many cases raising them since birth and becoming the only father or mother those children have known. 

But what rights do stepparents - or other de factor parents, such as homosexual spouses - have if the marriage doesn't work out? 

Our Brooklyn family law attorneys know that case law results have been mixed, suggesting these issues might soon wind their way to the U.S. Supreme Court. In the meantime, a number of cases continue to be battled out at the state level. 

Most recently, in the case of In re Custody of B.M.H., the issue is the scope of stepparent rights. The Washington state couple had a child together in 1995 during a two-year relationship. The two subsequently broke up. The woman went on to have a second child with another biological father, to whom she became engaged. However, her fiance was killed three months into her pregnancy. The father of her first child came back into the picture soon after. The two married and he raised the second child from birth.

However, the couple later divorced. At issue here is what rights does the father in this case have relative to the second child. Although the two continued to co-parent both children, the former stepfather technically had no legal rights to the child - even though he was tightly bonded with the child and was the child's father in all other respects. 

At the heart of this case, and so many others, is who qualifies as a parent. Legally, a parent is someone who is considered, by virtue of certain connections to a child, to have constitutionally-protected rights, as well as legal obligations, as it pertains to that child. 

In most cases, unless state law indicates otherwise, the termination of a marriage will result in the stepparent becoming a legal stranger to the child. Some state will allow for reasonable visitation, and there are a few cases where former stepparents have successfully petitioned the court for a non-parent custody. But those are generally only successful in cases where the former stepparent can prove the legal parent is unfit. 

In New York, de facto parentage has been rejected in the course of recent case law. Specifically, in the ruling of Debra H. v. Janice R., the courts ultimately upheld the rights of a woman who was in a civil union with her same-sex spouse at the time her spouse was artificially inseminated to produce a child. However, the way the law was interpreted allowed that such rights were only recognized when a couple was involved in some type of formal, recognized relationship. 

Ultimately, that has had the effect of the court rejecting the notion of so-called "functional parents," or those who participate in critical aspects of a child's life, without the actual legal protections afforded to the other parent. 

In many ways, this interpretation has failed to meet the needs of so many of New York's non-traditional families. 

If you are weighing issues of child custody in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

De Facto Parentage and the Rights of Former Stepparents, Dec. 10, 2013, By Joanna L. Grossman, Justia Verdict

More Blog Entries:

Successfully Negotiating the Terms of Your New York City Divorce Settlement, Nov. 17, 2013, Brooklyn Family Law Attorney Blog


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