September 9, 2016
The New York Court of Appeals decision in Brooke B. and Estrellita A., handed down on August 30, 2016, represents a huge victory for New Yorkers, particularly the LGBT community and unmarried couples having children with the assistance of medical technology. Rumbold & Seidelman is proud to have played at least a small role in the case by assisting in drafting one of the amicus curie briefs – submitted on behalf of the American Academy of Adoption Attorney – in support of the non-biologically related parent.
The decision, issued by the highest court in New York, overruled long-standing case law, which had severely limited the universe of persons who could seek custody or visitation of a child. Under that law, when the relationship between the child’s biological and non-biological parent ended, the non-biological parent who had not married the biological parent prior to the birth of the child could not seek custody or visitation unless the non-biological parent had adopted the child. As a result, those who had assisted in the conception of a child and raised the child since birth had no right even to seek to have custody of or visitation with the child if the biological parent opposed such contact. The issue of whether it was in the best interest of the child to continue to have contact with the non-biological parent was legally irrelevant. The Court decision in Brooke B. overruled that test and held instead that so long as the facts and circumstances showed “by clear and convincing evidence that the parties agreed to conceive a child and raise the child together,” the non-biological parent could seek custody or visitation, irrespective of whether he or she had adopted the child.
The decision is a bellwether one, especially for the LGBT community and those employing assisted reproductive technology to build their family. There is still a lot more work to be done in New York, however, to secure the legal relationships between parents and children conceived through third party reproduction (egg, sperm and embryo donation). Hopefully, the Court of Appeals decision will provide the momentum New York Legislators need to finally pass sensible legislation that will eliminate New York’s antiquated and punitive restrictions on gestational surrogacy. Rumbold & Seidelman, LLP together with a small group of other New York attorneys, assisted in drafting legislation which will do exactly that, but unfortunately that legislation has been pending in the New York Senate and Assembly for far too long without action. Passage of this critically important legislation is only possible with your support and advocacy. New Yorkers are urged to reach out to their Assembly Persons and Senators and encourage them to support the Child Parent Security Act which will serve to and support and protect children conceived through third party reproduction.
Please click the link below to read the New York Times article about the ruling:
June 9, 2016
See this comprehensive article in the ABA Journal discussing the contentious legal battles taking place over the disposition of frozen embryos where Denise comments on the importance of disposition agreements. The New York Child Parent Security Act, which Rumbold & Seidelman assisted in drafting, would provide much needed certainty to families in this uncertain legal landscape. Please contact your legislators and ask them to support this important New York legislation.
June 3, 2016
Rumbold & Seidelman was excited to be present at the oral argument of a landmark New York Court of Appeals case affecting nontraditional families.
On June 2, 2016 New York’s highest court heard argument in the case of Brooke B. This case presents an issue of particular importance to the LGBTQ community because it seeks to allow Brooke B. a non-genetic parent to seek custody of or visitation with the child she love and raised since infancy. Under New York law only a “parent” can seek custody or visitation in a contested matter. The law does not define the word “parent” but the New York Court of Appeals has previously held that only those who are biologically connected to the child or have adopted the child qualify as a “parent”. The Appellant challenged that ruling and asked the court to broaden the definition of parent.
Rumbold & Seidelman is proud to have played a part in the briefing of the appeal. The American Academy of Adoption Attorneys (AAAA) of which we are Fellows, submitted an amicus brief in support of Appellant arguing that requiring an adoption in order to give standing to seek custody or visitation was inappropriate in those cases where it disregards to best interest of the child in maintaining a relation with those who have acted as parents and formed a deep bonded relationship with them. We undertook to arrange to retain experienced appellate counsel to work on a pro bono basis and we assisted counsel in drafting the brief.
In our opinion the argument, handled primarily and effectively by Susan Sommer of Lambda Legal, went very well. The judges were very active in asking questions and challenging both sides. Indeed, at one point, counsel for appellant referred to the AAAA brief, and some of the matters addressed in the AAAA brief were the subject of several questions and answers. Although it is never possible to predict with certainty what any court will do, the court seemed very receptive of the arguments made by Appellate and supported by AAAA. As soon as the court rules, we will let you know of its decision.