Amicus Briefs in Child Custody Cases

Represented by a pro bono team at Latham & Watkins, the Lesbian, Gay, Bisexual and Transgender Rights Committee (Anna Pohl, Chair) and the Council on Children (Jane Golden, Chair), along with several co-amici, filed a brief in two cases pending before the Court of Appeals: In the Matter of Brooke S.B. and In the Matter of Estrellita A. Both cases squarely address the 1991 case of Alison D. v. Virginia M., in which the Court drew a purported “bright line,” refusing to recognize a lesbian mother’s standing as a “parent” under N.Y. Dom. Rel. Law (“DRL”) § 70 because she had no biological or adoptive tie to her child. The briefs argue that, as law and society have evolved in the intervening years, it has become clear that the standard set out in Alison D. violates parents’ and children’s constitutional rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment. In the cases at hand, biological mothers seek to use Alison D. to sever the parent-child relationships they intentionally fostered between their former romantic partners and their biological children. As argued in the briefs, “Today, the Court has the opportunity to right the harm the Alison D. standard has caused to New York’s children and parents, to recognize DRL § 70’s requirement that courts give paramount importance to the best interests of the child, to return New York to its position as a state at the forefront of equality, and to honor the memory of the late Chief Judge Kaye. This Court can now embrace an evenhanded and realistic conception of parenthood by equitable estoppel, as the majority of other states’ courts have done.”