## Facts

- Brooke S.B. and Elizabeth A.C.C., an unmarried same-sex couple, agreed that Elizabeth would conceive by artificial insemination and that they would raise the child together.
- The child was given Brooke’s surname, and Brooke functioned as a parent from the child’s birth.
- After the couple separated, Elizabeth ended Brooke’s contact with the child.
- Brooke petitioned under Domestic Relations Law (DRL) § 70 for custody and visitation; Family Court dismissed for lack of standing under then-controlling precedent limiting “parent” to biological or adoptive parents.
- In a consolidated matter, Estrellita A. (nonbiological partner) sought visitation from Jennifer L.D. (biological mother) after their separation.
- In the consolidated matter, Jennifer had previously obtained a child-support order by successfully asserting that Estrellita was a parent; Jennifer later opposed Estrellita’s visitation request.

## Issues

1. Whether DRL § 70 limits standing to seek custody or visitation to biological or adoptive parents.
2. Whether a nonbiological, nonadoptive partner has standing under DRL § 70 when the parties agreed, before conception, to conceive and raise a child together.
3. Whether a biological parent who previously prevailed on a claim that another person is a parent (to obtain child support) is judicially estopped from denying parent status to defeat visitation.

## Decision

- The Court of Appeals overruled prior precedent that categorically denied standing to nonbiological, nonadoptive partners.
- The Court held that a nonbiological, nonadoptive partner has standing under DRL § 70 upon proof by clear and convincing evidence that the parties agreed to conceive a child and raise the child together.
- In Brooke’s case, the Court reversed the dismissal and remitted for further proceedings so Brooke could attempt to establish standing under the new standard.
- In the consolidated matter, the Court affirmed the visitation order, holding that the biological mother was judicially estopped from denying the nonbiological partner’s parental status after obtaining child support on the contrary position.

## Legal Principles

- DRL § 70 “parent” standing extends beyond biology or adoption when, by clear and convincing evidence, the parties agreed before conception to conceive a child and raise the child together.
- Once a person qualifies as a “parent” for DRL § 70 standing, custody and visitation disputes are resolved under the child’s best interests standard on equal footing with the biological parent.
- Judicial estoppel may bar a biological parent from denying another person’s parent status in visitation or custody litigation when the biological parent previously prevailed by asserting that person’s parent status (including in child-support proceedings).

## Conclusion

The court replaced a categorical biology-or-adoption standing rule with an intent-based test requiring clear and convincing proof of a preconception agreement to co-parent, and it confirmed that judicial estoppel can secure standing where a biological parent previously treated the partner as a legal parent to obtain child support.


Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (N.Y. 2016)