The New York Court of Appeals is currently weighing issues of critical importance to families around the state of New York in the matter of Debra H. v. Janice R. The petitioner in the case, Debra H., seeks to prevent the possibility that she may never again see the child she parented since birth.  Respondent, her former partner and biological mother of the child, claims that Debra H. has no legal rightDebra H_Family Law Academics Amicus Brief covers as a parent.  This week, Columbia Law School’s Sexuality and Gender Law Clinic  filed an amicus brief with the New York Court of Appeals on behalf of forty-five family law scholars from every law school in New York State.  The brief was written by Professors Suzanne Goldberg and Ariela Dubler together with Clinic students Harriet Antczak, Mark Musico and Seung-Jae Lee, and urges the Court to bring the State into line with the clear trend in family law by recognizing important functional parent-child relationships.

Given the reality of today’s families, in which children are increasingly parented by adults other than their biological parents, Debra H. is not the only mother with a vital interest in this case.  Rather, at stake are the rights of all “functional parents” like Debra H. and the best interests of their children.

Currently, New York treats functional parents as “legal strangers” to their children, due to the 1991 Court of Appeals case, Alison D. v. Virginia M. There, a lesbian couple planned to have a child together, but when the couple separated, the biological mother attempted to cut off all contact between her former partner and the child.  Ruling on the former partner’s suit for visitation, the Court held that she had no legal rights as a parent.  Because she had no biological or adoptive relationship to the child, the Court found she did not meet its narrow reading of “parent” within the state visitation law.

Mounting evidence shows the harm caused when courts separate children from their functional parents, as in the Alison D. case and many other post-Alison D. cases in which courts have continued to treat functional parents as though they are unrelated to the children they have been parenting.

Taking account of this evidence and the changing realities of the American family, scholars and courts around the country have rejected the rigid conception of the family embraced in 1991 by New York’s high court.  They recognize that only a functional approach can adequately protect the many families in which children are raised by adults who have functional, but not legal or biological, ties to them.

Drawing on the wide consensus among scholars and many courts, the Clinic’s amicus brief calls on the Court to grant functional parents the same rights and responsibilities as legal parents at the point of family dissolution.  As the brief argues, “[t]his functional approach best serves the interests of New York’s children, consistent with New York’s family law jurisprudence and this Court’s equitable authority.”

Specifically, the brief shows two key criteria New York courts should consider in assessing claims to parental status made by functional parents.  First is that the legal parent must consent to the functional parent’s assumption of parental responsibility for the child.  Second, the functional parent actually has to have intended to and assumed parental responsibility.  In addition, courts can consider the parent-child bond between the functional parent and the child.  The brief highlights agreement among courts and scholars that these criteria for defining functional parenthood not only fairly assess claims by functional parents, but also protect the interests of legal parents and serve the best interests of children.

Importantly, the forty-five law school faculty members – hailing from all fifteen of New York’s law schools – demonstrate the best judgment of the legal academics who teach, write about, and practice family law, including many who have particular expertise in child advocacy and scholarship related to the best interests of children.  Their support is a powerful statement to the Court that the time has come to replace the harmful formalistic rule of Alison D. with a functional approach to defining the legal family.


  1. […] had a couple of recent postings on pending cases involving claims by lesbian mothers.   One is in New York, the other Puerto Rico.  In both cases the Center has filed amicus […]

  2. New York should adopt the functional parent approach for 2 reasons. First, Alison D. places New York in an anomalous position with regard to these cases (although New York allows same sex couples to have parental status ex ante through adoption). Second, this makes it consistent with the functional approach in the New York case of Braschi (a rent control case). Perhaps, functional parents should also pay child support to underline the person’s commitment to the child.

  3. I’ve seen this type of disruption in a child’s life only rarely because the guardian really keep the other functional parent away. And keep the kid out of therapy.

    Now you’re here, now you’re not, does a real number on any kid’s sense of stability, mainly increases abandonment anxiety. We all have some, but it’s a real drag on the personality, affect relationships, not in a good way.

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  7. 23 yr separation with domestic partner with 4 adoption children, now we r headed to family court. Do I hv a chance in the state of Md to see my children again?

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