The New York State Court of Appeals ruled Tuesday that a homosexual individual can seek custodial rights for non-biological children in an opinion that goes beyond gay couples.
The decision clears up two separate cases where biological mothers from former same sex couples aimed to keep their children from their ex-partners, the Associated Press reported.
“Where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law,” reads the opinion written by Judge Sheila Abdus-Salaam.
The previous 25-year old definition of parenthood mandated that a person looking for custody or visitation must have a biological or adoptive connection to the child.
The ruling, the AP notes, will also affect heterosexual, unmarried couples. An ex-partner could petition for visitation or custody of a child produced through artificial insemination if they can prove they and their former partner wanted to raise the child together.
Father’s rights advocates also question if the ruling opens the doors for biological fathers of heterosexual couples in divorce cases, where joint custody is an issue.
“The American Law Institute about a dozen years ago did a family law project and it went around and around about what kind of rights about even what kind of parenting should be given to non-biological people who acted in the position of a parent,” one DC legal expert who specializes in family law told The Daily Caller.
“And they came up with some mushy stuff. But a lot has changed in those dozen years. Obviously, including the Supreme Court case legalizing gay marriage, and once the Supremes did that, it became very difficult for any court to say that there ought to be the old-fashioned or traditional rules that adoption or custody or whatever to a non-biological parent can be prohibited as being against the best interests of the child.”
“The most obvious example of that, you say that two gay people can get married. Why is one of them preferred over the other in the event that they split up and the court has to make the custody decision? So you get lots of decisions that flow from The same-sex marriage decision. The thing that’s been kind of interesting to me is some of the activists, in the growing acceptance of gay parents, are tearing down the bias against biological fathers,” he said. “Take the example, if you have two gay guys. If you are going to give them joint custody why are you not giving joint custody to the heterosexual father who is divorced? So it is kind of an odd thing.”
Mothers tend to get custody of children over fathers 82.5 percent of the time, the census bureau shows. Pew Charitable Trusts argues that fathers do not actively seek custody of their children as often as mothers, saying that a study in Massachusetts said that dads who actively sought joint custody received it 70 percent of the time, but Cathy Young responds to such conclusions in a 2004 Boston Globe piece that the same study says that this number includes contested and uncontested cases.
Young writes,”The same study showed that mothers who filed for sole custody received it 75 percent of the time (with the rest usually getting joint legal/primary physical custody); the ‘success rate’ for fathers was 44 percent. It also mentioned, when explaining why few noncustodial mothers pay child support, that ‘women who lose custody often do so because of mental, physical, or emotional handicaps.’ Fathers may need to be far more fit to prevail.”
*This post has been updated