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Brooke S.B. v. Elizabeth C.C.

Summary

Lambda Legal represents Brooke S.B. in her effort to continue to parent the six-year-old son she and her former partner, Elizabeth C.C., planned to have together.

Brooke and Elizabeth met in 2006, and they made a home together in the small upstate New York town  in which they lived, in 2007. Brooke gave Elizabeth a ring and they became engaged with the hopes that they would marry as soon as it became legal for them to do so in their home state. Even though they couldn’t get married, they wanted to start their family immediately. They agreed that Elizabeth would carry the child, and she became pregnant in 2008 using an anonymous donor. When he was born, Brooke was there with Elizabeth in the delivery room, and Brooke cut the umbilical cord. The name they chose for their son—with Brooke’s last name—was on his birth certificate and both Elizabeth and Brooke are named as his parents on his birth announcements and baptism certificate.

From the start, Brooke fed him, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. To his doctor, his day care, the pastor who baptized him, Brooke is one of his mothers. When the couple’s relationship ended in 2010, Brooke continued to parent their son. He spent several nights a week with Brooke, time with both of his mothers on major holidays, and visits with Brooke’s parents—his grandparents. Brooke continued to bring him to doctors’ appointments and daycare, and still provided for him financially.  

In 2013, Elizabeth abruptly cut off contact between Brooke and their son, requiring Brooke to file for custody and visitation. The family court determined its hands were tied based on the high court’s decisions in 1991 in Alison D. and in a subsequent parenting case in 2010, Debra H. v. Janice R. The court dismissed Brooke’s petition despite the couple’s inability to marry during the time of their relationship and the lack of resources to adopt. The appellate court affirmed the lower court decision. After the Attorney for the Child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Lambda Legal argues that the prevailing New York legal precedents do not account for the myriad ways that people make families, including same-sex couples, and that to consider non-biological parents “legal strangers” to the children they have cared for since birth is not in the best interest of these children. New York’s passage of the Marriage Equality Act and the U.S. Supreme Court’s 2015 marriage ruling in Obergefell v. Hodges call for greater respect for the families formed by same-sex couples and their recognition as full-fledged parents of their children.

New York law on this issue is stuck in 1991, when the Court of Appeals ruled in Alison D. v. Virginia M. that non-biological, non-married, non-adoptive parents have no claim to protect their parental relationships with children they raised with a same-sex partner. Many prominent legal and child welfare experts have filed friend-of-the-court briefs on the side of Brooke and her son, including the New York State Bar Association, the New York City Bar Association, the National Association of Social Workers, and 45 family law academics on the faculty of every law school in New York State.

History

  • 2008: Brooke and Elizabeth's child is born.
  • 2010: Brooke and Elizabeth separate but continue to co-parent.
  • 2013: Elizabeth cuts off contact between Brooke and their son.
  • June 2016: Oral arguments take place before the New York State Supreme Court
  • August 30, 2016 Victory! New York High Court Rules Non-Biological Parents Can Seek Custody and Visitation

Case Information

Status: Open

Lambda Legal

Susan Sommer, Director of Constitutional Litigation

Blank Rome LLP

Margaret Canby
Caroline Krauss-Browne

LGBT Bar Association of Greater New York

Brett Figlewski