Family Law Keyed to Weisberg

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Alison D. v. Virginia M

Citation. Alison D. v. Virginia M., 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586, 1991 N.Y. LEXIS 634 (N.Y. May 2, 1991)

Brief Fact Summary. Petitioner brought a petition for visitation of the son of respondent, whom petitioner had helped to raise and care for during petitioner and respondent’s former lesbian relationship.

Synopsis of Rule of Law. Under New York Domestic Relations Law, petitioner has no standing to seek visitation rights as a parent.

Facts. Petitioner Alison D. and Respondent Virginia M. established a relationship together and decided to have a child together, with respondent being artificially inseminated. The planned the conception and birth together an agreed to share jointly in all rights and responsibilities of child-rearing. Respondent gave birth to a baby boy, who was given petitioner’s last name as his middle name and respondent’s last name as his last name. Petitioner shared all birthing expenses and after birth continued to provide for his support. Petitioner and respondent jointly cared for and made decisions regarding the child for his first two years. When the child was two petitioner and respondent terminated their relationship and petitioner moved out of the jointly owned house. They agreed to a visitation schedule, and petitioner also agreed to continue to pay one half of the mortgage and major household expenses. The child referred to both petitioner and respondent as mommy. Three years l
ater respondent bought out petitioner’s interest in the house and began to restrict petitioner’s visitation. The next year petitioner moved to Ireland to pursue career opportunities, but continued to try to communicate with the child. Respondent terminated all contact between petitioner and the child. No dispute exists that respondent is a fit parent. Petitioner commenced this proceeding to seek visitation rights pursuant to New York Domestic Relations Law.

Issue. Under New York Domestic Relations Law, can a nonparent seek continued visitation with a child when the nonparent has developed a relationship with a child or had prior relationships with a child’s parents?

Held. The majority declines to read into the term parent in the Law to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child’s parents and who wish to continue visitation with the child.
Under the Law, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and the court may award the natural guardianship, charge and custody of such child to either parent. Petitioner has no right under the Law to seek visitation, and thereby limit or diminish the right of the concededly fit biological parent to choose with whom her child associates.

Petitioner claims to have acted as a de facto parent or that she should be viewed as a parent by estoppel. She therefore claims to have standing to seek visitation rights. Such claims are insufficient under the Law. It has long been recognized that, between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity.

Dissent. The Courts decision has an impact far beyond this controversy, including other relationships such as stepparents. The decision most adversely affects the children of those relationships. The Law does not define the term parent, and it is clear that a parent-child relationship existed in this case. It is important to remember this is a visitation, not a custody case. Custody disputes implicate a parent’s right to rear a child, and infringement on that right must be based on the fitness of the custodial parent. Visitation rights implicate the right to choose with whom the child associates. Any burden on the exercise of this right must be based on the child’s overriding need to maintain a particular relationship. There must be some limitation on who can petition for visitation, with other jurisdictions using a test for parental status or in loco parentis.

Discussion. The majority finds through statutory interpretation that the petitioner had no standing to bring a petition for visitation, while the dissent discussed the difference between custody and visitation, expressing its belief that in visitation hearings the child’s best interest should be considered when the petitioner has established parental status.