Brooke S.B. is the story of what constitutes a family and of passionate advocacy in the face of seemingly impossible odds. It deeply moved attendees at the Jan. 17 Family Law Section meeting during the New York State Bar Association’s Annual Meeting in New York City.
Brett Figlewski, legal director of the LGBT Bar Association of New York (LeGaL), said that he went to law school to “change the world” and “to effectuate real change.” As one of the attorneys on the legal team that argued the landmark custody case, Brooke S.B. v. Elizabeth C.C., before the New York Court of Appeals, he has certainly made strides.
Brooke Barone and her ex-partner, Elizabeth Chapman-Cleland, had been together for two years when they decided to have a child. Chapman-Cleland became pregnant through alternative insemination, and, in 2008, their son was born. Both women were listed as parents on the birth certificate and used “Barone” for the boy’s last name.
When they broke up in 2010, they continued living in the same vicinity and had a co-parenting arrangement. Barone provided financial support to Chapman-Cleland, enjoyed several overnight visits a week with her son, and took him to medical appointments and daycare. In 2013, Chapman-Cleland cut off contact. Brooke Barone sued in Chautauqua County Family Court in Jamestown for custody and visitation rights. The family court appointed R. Thomas Rankin as attorney for the child (AFC). It was Rankin who sought leave to appeal with New York’s highest court so that, on appeal, it was technically the child who was the appellant and Barone and Chapman-Cleland were the respondents.
Barone talked about the pain of not being able to see her son and gave examples such as running into her son and her ex at the local grocery, only to watch powerlessly as Chapman-Cleland hustled the boy out of the store. She recounted her frustration at the obstacle to her parental rights: Alison D. v. Virginia M., the 1991 Court of Appeals decision establishing a bright-line rule that only biological or adoptive parents had standing to seek custody and visitation. All others were “legal strangers” to the child.
In 2010, in Debra H. v. Janice R., the Court of Appeals seemed disinclined to revisit Alison D. when it stated in dicta that any change in the meaning of ‘parent’ under the law needed to come from the New York State legislature, not the judiciary.
AFC Rankin argued in family court and on appeal to the Fourth Department that non-biological/non-adoptive parents like Barone should have standing because of recent and sweeping changes in the law to recognize the rights of LGBT individuals, including marriage equality both in New York and nationwide. That did not affect the outcome; according to the Fourth Department, Alison D. applied. But Rankin and Barone persisted. The Court of Appeals granted leave to appeal.
Barone contacted LeGaL, and soon a legal team was assembled including Susan Sommer of Lambda Legal, Margaret Canby and Caroline Krauss-Browne of Black Rome LLP, and LeGaL’s Brett Figlewski. AFC Thomas Rankin, of Goodell & Rankin, worked with Eric I. Wrubel, Linda Genero Sklaren, and Alex R. Goldberg of Warshaw Burstein, LLP. NYSBA filed an amicus brief in the case written pro bono by Roberta Kaplan, who received NYSBA’s Gold Medal in 2018 for her ‘extraordinary’ work in civil rights litigation. In August 2016, the Court of Appeals ruled in Barone’s favor.
Figlewski explained the law behind the victory, saying that New York’s 2011 Marriage Equality Act and the U.S. Supreme Court’s rulings in U.S. v. Windsor in 2013 and Obergefell v. Hodges in 2015 had set the stage, but neither the act nor those rulings alone could overturn the New York law in Alison D. which directly affected children and parental status.
What Brooke S.B. did was change the standard, Figlewski said. Now, “where a putative parent can prove there was an agreement to have a child and raise it together, that parent will have standing,” noting that “intent and consent” are key.
The ruling, he said, also allows for robust use of the concept of “equitable estoppel,” meaning, in essence, that a party cannot take a legal position in conflict with the party’s “prior statements and conduct.” To determine whether equitable estoppel applies, the court needs to look at what happened – not just between the adults but also in each adult’s respective relationship with the child. The facts, said Figlewski, are “in how the family conducted its life.”
Four factors often looked at are consent, including whether the biological or adoptive parent held out the other as a parent; whether the parties and the child lived together as a family; whether individual assumed the duties of parenting; and whether a parent-child bond was established.
An increasingly important consideration during litigation is whether it would harm the child if the relationship is disrupted and visitation is cut. After the Court of Appeals ruling and subsequent family court appearances to determine the best interests of the child, Barone’s ex-partner agreed to a custodial and visitation arrangement, and Barone finally saw her son that fall. After three years apart, it took some time to adjust, but Barone and her son have restored their loving family bond.
Figlewski described how the law is seeing new challenges in the form of multi-parenting arrangements and, in some cases, assertion of rights by donors in alternative insemination. Such cases build on the principles of Brooke S.B. and hinge on both the intentions of the parties and how they conducted themselves with each other and with the child – where there is a divergence, the facts on the ground will often be persuasive and prevail.
Although a hierarchy of parentage exists in the law, Figlewski said, there is no doubt that intent and functional parentage are now included, and legal advocates play a tremendous role in ensuring that parental rights are recognized and protected.