Does a biological parent have greater rights to a child than an individual whose parental rights are established through a preconception agreement? In New York, “parent” is defined by case law. As a result, six distinct avenues now exist in establishing legal parentage of a child: biology, adoption, presumption of legitimacy through marriage, assertion of estoppel (equitable and judicial) and the existence of a preconception agreement to have and raise a child together. A recent decision on appeal to the Appellate Division, First Department ( K. v. C. ) suggests that a hierarchy exists to parental creation whereby biology sits at the top of the ladder and the Court of Appeals' recently devised preconception agreement rests at its lowest rung. Prior to August 2016, a parent was defined in New York as an individual biologically or legally (i.e., adoption) related to a child. This definition was not enacted by the N.Y. Legislature but was the product of case law rendered 25 years ago in the New York Court of Appeals' decision of Alison D. v. Virginia M; the definition was later reaffirmed by the Court of Appeals in 2010 in dicta in Debra H. v. Janice R . With the U.S. Supreme Court rendering its decision in Obergefell v. Hodges and the New York State Legislature enacting the Marriage Equality Act, the Court of Appeals revisited its narrow definition of parent in the seminal case of Brooke S.B. v. Elizabeth A.C.C.

Brooke S.B.

In Brooke S.B., the New York Court of Appeals took the unprecedented step of overruling its own prior two decisions in Alison D. and Debra H . [ Brooke S.B. v. Elizabeth A.C.C. , 28 N.Y.3d 1 (2016); Debra H. v. Janice R. , 14 N.Y.3d 576 (2010); Alison D. v. Virginia M. , 77 N.Y.2d 651 (1991).] The parties in Brooke S.B. were a lesbian couple who had been in a romantic relationship prior to the enactment of New York's Marriage Equality Act; the parties were never married. Nevertheless, the couple decided to form a family. Elizabeth carried their child; Brooke attended all prenatal exams and was present for their child's birth. The parties raised their child together for a number of years; Brooke continued to see their child even after the parties' relationship ended. When Brooke started seeing someone else, Elizabeth first reduced, and then ultimately terminated, Brooke's access to their child. Brooke commenced an action in Family Court to have access to her son. The trial court and the Appellate Division, Fourth Department—in following Alison D.— denied Brooke's application finding she did not have standing to seek custody of her son. In Brooke , the Court of Appeals acknowledged that its prior decisions harmed children because it removed an individual who had been a parent based solely upon a bright line test rather than the best interest of the child. With the decision in Brooke S.B. , individuals not biologically or legally related to a child could now assert standing to seek custodial rights by utilizing the remedy of equitable estoppel (which the Court of Appeals had specifically precluded litigants to use as a means to asserting parentage of a child in Alison D .) In addition, the Court held that parentage of a child would be acknowledged if a preconception agreement to conceive and raise a child together existed. Approximately one year later, the Appellate Division, First Department took the unprecedented step of holding that a child born to a same-sex couple would be presumed to be the legitimate child of both spouses to that marriage regardless of the inherent biological limitation [ In re Maria-Irene D. , 153 A.D.3d 1203, 1205 (1st Dep't 2017)]. T he appellate divisions of the second and third departments followed suit in separate opinions thereafter  [ Christopher YY. v. Jessica ZZ. , 159 A.D.3d 18, 25-34 (3d Dep't 2018); Joseph O. v. Danielle B. , 158 A.D.3d 767, 770-72 (2d Dep't 2018)].  Accordingly, with the acknowledgment that the presumption of legitimacy applies to same-sex married couples, there are presently not less than six avenues by which a parent may establish their standing to assert custody of a child. Are all six pathways to parentage equal though? The decision in K. v. C. , rendered in April 2017 and presently on appeal, would suggest that the answer is a resounding “no."

K. v. C.

In K. v. C. , the parties, who were never married, decided during their relationship to have a child together. While their “preconception agreement” was not in writing, both parties acknowledged subsequently its existence. The parties' relationship ended and they entered into a separation agreement in May 2010. Ten months later, Respondent adopted (by herself) the child who is the subject of the legal proceedings. While the parties memorialized the end of their financial relationship, no such writing exists stating unequivocally that their preconception agreement had been terminated. Petitioner alleged that that her standing to seek custody as a parent was premised upon her continued involvement in the adoption process after the parties had separated. Petitioner had frequent contact with the child after the adoption. The child often stayed overnight on a weekly basis at her residence. Petitioner was listed as an emergency contact at the child's school. Petitioner testified to the bond that had developed between her and the child. Respondent argued that the preconception agreement “dissolved” simultaneously with the dissolution of their relationship. Respondent contended petitioner's involvement was akin to a close friend or g-d parent, but not a parent. Emails were submitted into evidence where petitioner talks of a missed opportunity with the child and her fears of being a mother; additional emails were introduced into evidence stating petitioner was not the child's mother. After hearing 36 days of testimony from the parties and 17 additional witnesses, which filled 4,378 pages of transcripts; and reviewing 341 exhibits submitted collectively by the parties, the trial court framed the question to be resolved as whether the preconception agreement to conceive and raise a child together “continued unabated.” The last two words in the trial court's test are not found in the one enunciated by the Court of Appeals in Brooke S.B . Did the trial court alter the Court of Appeals' test, thereby creating a new test for this case only, or are the additional words of “continued unabated” assumed in the test already? The Court of Appeals never addressed the issue of the duration of the preconception agreement in its decision in Brooke S.B . Thus, the trial court in K. v. C . was left to grapple with whether a preconception agreement can end and, if so, under what circumstances. Indeed, the trial court found in K. v. C . that the preconception agreement that had existed between the parties ended upon the dissolution of their relationship. It remains unclear whether such “termination” can be unilaterally accomplished, i.e., by either party declaring the agreement terminated, and at what point after the creation of such an agreement it is, in fact, terminated. (One has to wonder whether the trial court would have found differently if it had been the adoptive parent seeking child support from petitioner and asserting an estoppel claim under the Family Court Act.) More importantly, though, finding that the preconception agreement terminated devalues this particular pathway to parentage vis-a-vis the other avenues, e.g., biology, adoption and the presumption of legitimacy through marriage. For instance, where parentage is created during a marriage through the presumption of legitimacy, a court would certainly not find such parentage terminated upon entry of a judgment of divorce. Similarly, once parentage is created through judicial estoppel by one parent seeking child support against the other through a judicial application, court may not thereafter terminate parentage if the recipient of child support disavows receipt in order to cut off the other parent's custodial rights. [ Paese v. Paese , 144 A.D.3d 770, 772 (2d Dep't 2016).] Nevertheless, the decision in K. v. C. would suggest that parentage created through equitable estoppel or acknowledgment of a preconception agreement to conceive and raise a child together—which is essentially dependent upon judicial recognition—can be terminated at some point by one parent or a court. The trial court in K. v. C. ultimately found that petitioner had failed to establish by clear and convincing evidence that she had standing as a parent to seek custody of the child. The trial court's decision focused on just a few exhibits in the record; it would appear that much of the trial record is neither distinguished nor discussed in the opinion. For instance, petitioner's appellate counsel disclosed during rebuttal oral argument at the Appellate Division, First Department, that petitioner had “make-up” time with the child—a fact not referenced in the trial court's opinion. Indeed, g-d parents, nannies, “aunties," friends and stepparents do not have “make-up” time with a child ... only a parent has that option/right. There is little question that this case provided the trial court and the appellate court with a serious conundrum. New York does not allow individuals to dip a toe into parentage. Either you are fully in (as a parent) with full rights and obligations, or you have no rights and no obligations to such child. If this is so, one must then assume that a preconception agreement or acknowledgment of parentage by estoppel may not be terminated unilaterally by either parent or, for that matter, by a court, except under exceptional circumstances. We await the appellate court's view of whether such agreements can ever terminate and, if so, under what circumstances. Eric Wrubel is chair of the matrimonial department of Warshaw Burstein. He was lead appellate counsel to the appellant, the child in the New York Court of Appeals case, .