New York Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
New York courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
New York law states: “In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly.”
In a 1994 case, Paul C. v. Tracy C., the appeals court reaffirmed that where a parent’s sexual preference does not adversely affect the children, that preference is not determinative in a child custody dispute.
In a 1986 case, M.A.B. v. R.B., the mother sought to modify a divorce judgment, specifically allowing her to move to Florida with the three children. The gay father also sought to modify the judgment, seeking sole custody of the couple’s 12-year-old son, B. The mother argued that the father’s sexual orientation would adversely affect B. if physical custody were awarded to him. The court found that the evidence presented was contrary to the mother’s assertion. The court stated that courts need to follow the “nexus test” in these situations. This test states that the sexual orientation of a parent can only be an issue insofar as it can be proven to have harmed the child. In this case, the court found the father to be a caring and worthy father and stated: “It is impermissible as a matter of law to decide the question of custody on the basis of the father’s sexual orientation. The guiding consideration must be B.’s best interest.”
In another 1986 case, Anonymous v. Anonymous, the trial court awarded custody of the couple’s three children to the mother, granting the father liberal visitation. The father appealed, stating that the court erred because the mother was bisexual and was less fit to be the custodial parent. The appellate court affirmed that in the absence of proof that a parent’s “sexual lifestyle” adversely affected the children, the mother’s sexual orientation did not render her an unfit parent.
In another 1986 case, Gottlieb v. Gottlieb, the issue before the court was whether the condition placed on the gay father’s visitation rights, specifically, that he would not involve the child “in any homosexual activities or publicly,” should be stricken. The court found that there was sufficient evidence in this case to impose this condition.
In a 1984 case, Guinan v. Guinan, the parents were awarded joint custody, with the mother having primary physical custody, of the couple’s three children. The father appealed. One of his arguments was that the mother was a lesbian. The court found that this issue was not determinative to this custody dispute and that “a parent’s sexual indiscretions should be a consideration in a custody dispute only if they are shown to adversely affect the child’s welfare.” There was no evidence introduced of the mother’s misconduct, and thus, the order was affirmed.
In a 1978 case, DiStefano v. DiStefano, the mother appealed the family court’s decision to award the father custody and grant her visitation with the condition that her same-sex partner could not be in the home during visitation. The court upheld the order and the condition, stating: “The court’s decision reasonably may be read to conclude that the wife’s conduct in failing to keep her lesbian relationship with Nancy Wilson separate from her role as mother has had, and predictably will have, a detrimental effect upon the children. That conclusion is amply supported in the record.”
In a 1976 case, Matter of Jane B., the father sought a change in custody. He argued that the mother’s involvement in a same-sex relationship was a change in circumstances warranting the transfer of custody to him. The court found that the environment at the mother’s home to be “improper,” and not in the best interests or welfare of the child. As a result, the court transferred custody to the father and imposed the following restrictions on the mother’s visitation: that the child would not remain overnight at the mother’s residence, nor was she to be taken there to visit while mother’s same-sex partner or other “homosexuals” were present; that the child would not be taken to any other place where “known homosexuals” were present; and that the mother would not involve this child in any “homosexual activities or publicity.”
In a 1995 case, Leora F. v. Sofia D., the mother of the child, Marguerite, died shortly after he was born. The mother’s surviving same-sex partner, Sofia, was granted temporary legal guardianship. Marguerite’s mother and former husband (not the child’s father) sought custody and visitation of the child. Sofia argued that her relationship with Marguerite supported her right to be named guardian. The court rejected this argument, stating that Sofia’s sexual relationship with the mother neither supports nor bars her petition. Additionally, the court affirmed that the “sexual lifestyle” of a person, whether it was homosexual or heterosexual, should be considered only if it shown to be detrimental to the child’s well-being. The court granted guardianship to Sofia, stating that she was “the only person who has always been a stable, loving presence in Astonn’s life from the time he was born,” and that it was in the best interest of Astonn that guardianship be awarded to Sofia.
Custody and Visitation for Transgender Parents
New York courts typically will not consider a parent’s gender identity or expression in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
In a 1985 case, Karin T. v. Michael T., the family court ordered a transgender parent to pay child support for two children he had helped his wife conceive through alternative insemination. When the alternative insemination was performed, he had signed an agreement that he would be the legal parent of the child. That agreement formed the basis of the court’s decision requiring the transgender parent to provide support for the children when the couple separated.
Custody and Visitation for Same-Sex Co-Parents
New York courts have not granted custody or visitation rights to the non-biological parent of a child.
In a 2002 case, Janis C. v. Christine T., the non-biological co-parent, Janis, petitioned the court for visitation rights. The family court dismissed the petition, stating that Janis did not have standing to petition for visitation. The state Supreme Court upheld this finding, stating: “Any extension of visitation rights to a same-sex domestic partner who claims to be a ‘parent’ … must come from the New York state Legislature or the Court of Appeals.”
In a 2000 case, J.C. v. C.T., the non-biological same-sex co-parent, J.C., petitioned for visitation of the couple’s children. The biological mother, C.T., moved to dismiss the action, arguing that J.C. did not have standing to petition the court for visitation. The court found that if J.C. could satisfy the test put forth by the Wisconsin Supreme Court (In re H.S.H.) and then the New Jersey Supreme Court (V.C. v. M.J.B.) for whether a person was a de facto parent, then the court must determine whether visitation with J.C. was in the best interests of the children. These factors were: the legal parent must consent to and foster the relationship between the third party and the child; the third part must have lived with the child; the third party must perform parental functions for the child to a significant degree; and, most importantly, a parent-child bond must be forged.
In a 1998 case, Lynda A.H. v. Diane T.O., a same-sex couple had a child together. When the child was 3-and-a-half years old, the couple petitioned for Diane to adopt the child. Before the adoption occurred, the relationship ended and the biological mother, Lynda, revoked her consent to the adoption. The issue before the court was whether Diane had standing to obtain custody or visitation of the child in the absence of extraordinary circumstances. The court found that Diane did not have standing to seek visitation.
In a 1991 case, Alison D. v. Virginia M., the former same-sex partner and co-parent, Allison, petitioned for visitation rights. The court had to determine whether Allison had standing to do so. The court found that she did not. The court based its decision based on the fact that the state Legislature had not provided for a non-parent to petition for this right.
In a 2002 case, Tripp v. Hinckley, a gay man donated his sperm. All parties agreed that the mother and her partner would be the children’s custodial parents and that the sperm donor and his partner would have regular contact with the children. The parties entered into a “visitation agreement.” After the female couple’s relationship ended, the sperm donor petitioned for more frequent visitation. The family court found that expanded visitation would be in the children’s best interest. The mother appealed, arguing that he was just a sperm donor and should be restricted to the terms of the “visitation agreement.” The appellate division of the state Supreme Court upheld the family court order, stating that the sperm donor has been actively exercising the parental rights permitted under the agreement and the court-appointed professionals believed expanded visitation would be in the children’s best interests.
Citations: NY CLS Dom. Rel. §70; Paul C. v. Tracy C., 209 A.D.2d 955 (N.Y. App. Div. 1994); M.A.B v. R.B., 134 Misc.2d 317 (N.Y. Spec. Term 1986); Anonymous v. Anonymous, 503 N.Y.S.2d 466 (N.Y. App. Div. 1986); Gottlieb v. Gottlieb, 108 A.D.2d 120 (N.Y. App. Div. 1986); Guinan v. Guinan, 102 A.D.2d 963 (N.Y. App. Div. 1984); DiStefano v. DiStefano, 401 N.Y.S.2d 636 (N.Y. App. Div. 1978); Matter of Jane B., 85 Misc.2d 515 (N.Y. Gen. Term 1976); Leora F. v. Sofia D., 635 N.Y.S.2d 418 (N.Y. Fam. Ct. 1995); Karin T. v. Michael T., 484 N.Y.S.2d. 780 (N.Y. Fam. Ct. 1985); Janis C. v. Christine T., 294 A.D.2d 496 (N.Y. App. Div. 2002); J.C. v. C.T., 711 N.Y.S.2d 295 (N.Y. Fam. Ct. 2000); Lynda A.H. v Diane T.O., 673 N.Y.S.2d 989 (N.Y. App. Div. 1998); Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991); Tripp v. Hinckley, 736 N.Y.S.2d 506 (N.Y. App. Div. 2002).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 10/13/2004