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

  • Alison and Virginia were a gay couple that owned a home together. They decided to have a baby, and Virginia got pregnant via donor.
    • Alison and Virginia agreed to share all rights and responsibilities of child rearing, and the baby had both of their last names.
    • The baby referred to both women as ‘mommy’.
  • A few years later Alison and Virginia broke up. Alison moved out, but continued to pay for her share of the household expenses and mortgage. She also visited the child on a regular basis.
  • A few years after that, Virginia bought out Alison’s interest in the house and began to restrict her visitations. Eventually, Virginia cut off all contact between Alison and the child. Alison sued for visitation rights.
  • The Trial Court found for Virginia and dismissed the claim.
    • The Trial Court found that under New York law (Domestic Relations Law §70), Alison was not a parent, therefore she had no claim.
  • The Appellate Court affirmed.
    • Alison admitted that she was not the biological parent, but argued that she was a de facto parent and therefore should be awarded some sort of ‘parent by estoppel’ status.
  • The New York Supreme Court affirmed.
    • The New York Supreme Court agreed with the Trial Court that under §70, Alison had no standing.
      • Note that this is Statutory. The Court’s hands were tied because there was a Statute on-point.
    • The Court found that allowing a third-party to have visitation or custody rights would impair the parents’ right of custody and control.
    • The Court found that there was no ‘parent by estoppel.’
      • Aka a defacto parent.
  • In a dissent it was argued that §70 does not define the word ‘parent’, and the courts could broaden the definition to include not only biological parents, but also de facto parents such as Alison.
    • The dissent looked to Braschi v. Stahl (543 N.E.2d 49 (1989)), in which the New York Supreme Court broadened the definition of ‘family’ in a rent control Statute to include gay couples.
  • There was no claim that Virginia was an unfit parent or exceptional circumstances. If there had been then Alison might have been able to argue that Alison’s parental rights be terminated and that the Court consider the best interests of the child. But without a claim of unfitness, Alison (standing as a third party non-parent) was not allowed to make a best interests argument.
    • For example, see Bennett v. Jeffreys (356 N.E.2d 277 (1976))
  • Other States have found that there can be a defacto parent, and third parties such as Alison who have operated as a function family (as opposed to a form family), can have parental rights.
    • See Elisa B. v. Superior Court (117 P.3d 660 (2005)).