How do we define the word “parent”?

Everyone knows what a parent is, right? Wrong. In fact, courts have been slowly expanding the concept of parental rights, and a recent New York case posed the latest challenge to traditional notions of how we define the term.

How parental rights have expanded

Once upon a time, the word “parent” legally applied only to the two people who conceived a child. Then adoptive parents were added to the list of those regarded as legal parents. Nowadays, the concept of parental rights in the eyes of the law has expanded well beyond these two traditional categories. Twenty-three states give divorced and legally separated stepparents (including same-sex stepparents) the right to seek visitation of a stepchild whom they helped raise. In many states, grandparents also have the right to seek visitation and sometimes custody if they’ve moved into a parental role to care for the child.

Unmarried stepparents challenge traditional notions

As fewer and fewer couples choose to marry, there are more and more homes with an unmarried partner who is parenting their partner’s biological or legal child (again, this includes both same- and opposite-sex couples). Until now, such an unmarried partner had no legal rights to contact with a child he or she helped raise once the adult relationship ended. The New York case involved two women, Brooke Barone and Elizabeth Cleland (now Chapman-Cleland), who were living together as unmarried partners. Cleland gave birth to a son (conceived through artificial insemination) during their relationship. Barone claims she was the child’s parent in every meaningful sense–cutting the newborn’s umbilical cord and caring for him in all the ways a parent would. She never adopted the child, however, and sometime after the couple split up, Cleland cut her off from spending time with him.

Barone subsequently petitioned the court for the right to visitation with the child she feels she parented. (The case was complicated by the fact that the birth mother, Cleland, had since married another woman who is seeking to adopt the child; the adoption could not proceed until this case was resolved.) The trial court denied Barone’s claim, citing New York state’s “bright-line rule” of biological or legal parentage being the standard that must be applied. Barone appealed, but on June 19, 2016, a New York appellate court upheld the trail court’s ruling.

Case closed? Maybe, for now, in New York. But there are similar cases pending in Maryland and Massachusetts, so it’s possible that other jurisdictions will decide differently.

What do these cases mean?

The heart of the argument in these cases is that a person who lives in a home and has a key parental relationship with a child should have the right to continue that relationship even after a break up. But if this is allowed, where do you draw the line? How long of a relationship does a person have to have had in order to form a parental bond with a child? Does the relationship have to begin at the child’s birth? Or should the standard be based on the quality of the time together, rather than its length?

Moreover, will the granting of parental visitation rights to never-married partners open the floodgates to legal parental rights to anyone—say a nanny or even a family friend—who has had a meaningful relationship with the child?

Should the courts decide?

A key consideration in all these cases is to determine what is in the best interest of the child. The best interest standard is used to make all custody and visitation decisions, but courts in these cases cannot apply the standard until the person seeking custody or visitation has showed that they have legal standing as a parent.

And that’s where things get really tricky. Had the New York court granted Barone’s petition for visitation rights, they would have effectively changed New York law on who is a legal parent. Is this something that the courts should do, or, as Cleland’s attorney argued, is this a matter for the legislature to address?

One thing is for sure, these types of cases aren’t likely to disappear.