In New York, custody disputes usually occur between parents—but what happens when someone who isn’t a biological or legal parent seeks custody of a child?
At Gilmer Law Firm, PLLC, located in Downtown Brooklyn, we often get calls from concerned relatives, former partners, or family friends asking:
“Can I get custody of this child even though I’m not the biological parent?”
The answer is: Yes, but only in very limited and specific circumstances.
🧾 New York Law: A Parent’s Right Is Superior
New York law starts with a fundamental constitutional principle:
“A parent has a right to rear their child that is superior to that of a non-parent unless extraordinary circumstances are present.”
This standard is rooted in both state and federal law, including the U.S. Supreme Court’s landmark decision in Troxel v. Granville, 530 U.S. 57 (2000), which held that:
“The liberty interest of parents in the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment.”
This means that unless a non-parent can prove extraordinary circumstances, they do not even have standing to bring a custody case in New York Family Court.
⚖️ What Are “Extraordinary Circumstances”?
New York courts interpret this term narrowly, out of respect for the fundamental rights of parents.
Some examples where courts have found extraordinary circumstances include:
- Abandonment or surrender of the child
- Persistent neglect or abuse
- Parental unfitness (mental illness, substance abuse, etc.)
- Extended, voluntary transfer of custody with no effort to regain the child
- Significant harm or danger to the child’s well-being
Important: A long period of separation alone is not enough if the parent has continued to stay in contact, provide support, or try to regain custody.
📚 Key Case:
Troxel v. Granville
(2000)
In Troxel, the Supreme Court struck down a Washington statute that allowed any third party to petition for visitation—even over a fit parent’s objections.
The Court ruled that this violated a mother’s constitutional right to make decisions about her children, affirming the high bar non-parents must clear to challenge a fit parent’s choices.
📚 New York Case Law:
Alison D. v. Virginia M.
(1991)
In this case, the New York Court of Appeals denied custody rights to a lesbian domestic partner who helped raise a child but was not the child’s biological or adoptive parent.
The Court held that only legal or biological parents had standing to seek custody or visitation under Domestic Relations Law § 70.
This ruling created deep hardship for many non-traditional families—especially same-sex couples.
📚 Legal Evolution:
Brooke S.B. v. Elizabeth A.C.C.
(2016)
In 2016, the Court of Appeals revisited Alison D. and issued a groundbreaking ruling in Brooke S.B., stating:
“Where a partner shows by clear and convincing evidence that the parties agreed to conceive and raise a child together, that partner has standing as a parent under DRL § 70.”
This expanded the definition of “parent” in New York, giving non-biological, non-adoptive individuals a pathway to seek custody or visitation—but only in limited circumstances.
🏛 Example from Brooklyn Family Court
Our firm recently handled a case where a former same-sex partner sought custody of two children conceived through artificial insemination during the couple’s relationship. Despite helping raise the children and maintaining contact, the non-biological parent was denied standing because she had not adopted the children and could not prove extraordinary circumstances.
This case echoed the reasoning in Brooke S.B., where the court said:
“Extraordinary circumstances are required before the state can intrude on parental rights.”
The Court looks at factors such as:
- Who planned the child’s birth?
- Who was present during prenatal care and delivery?
- Who raised the child and made parenting decisions?
- Was the child held out to the public as part of a two-parent household?
Only when such facts are uncontested and compelling will a court allow a non-parent to proceed to a “best interests of the child” hearing.
📌 Local Considerations in Brooklyn, NY
In Brooklyn Family Court, petitions from non-parents are frequently dismissed unless the filing party can meet the high threshold of extraordinary circumstances.
If you’re seeking custody of a child in Brooklyn and are not the legal or biological parent, you must be prepared to:
- Prove a pre-existing parent-like relationship
- Present evidence of extraordinary circumstances
- Possibly face constitutional objections from the legal parent
⚖️ Legal Support for Non-Parents Seeking Custody or Visitation
At Gilmer Law Firm, PLLC, we can help:
- Evaluate whether you have standing as a non-parent
- Gather evidence to prove extraordinary circumstances
- Respond to motions to dismiss for lack of standing
- Present a compelling case based on the child’s best interests
We stay current on cutting-edge case law like Brooke S.B. and Troxel, and we fight to protect the important emotional bonds between children and non-parent caregivers when the law allows.
