Rediscovering Third Party Visitation Under the Common Law in New York: Some Uncommon Answers

Abstract:     
In this article, I examine a leading decision of New York's highest court (Matter of Ronald FF v. Cindy GG) which ruled in 1987 that non-legally recognized parents (de facto parents) may not go to court to seek court-ordered visitation over the objection of the legally recognized parent. This decision has meant that same-sex partners (or step-parents) who have helped raise children since their birth are entirely without a legal remedy to try to maintain a relationship with their children after the adult relationship has ended. Many have criticized this result on policy grounds. I do not do so in this article because New York's highest court did not decide the case on policy grounds. Instead, it purported to decide it in accordance with what it claimed are venerable common law principles. I attempt in this article to demonstrate, through a careful analysis of New York's common law, that the case was wrongly decided on its own terms and that New York's common law had longed allowed cases of this sort to be filed. The current understanding of the law is that Matter of Ronald FF refused to change the common law to adapt to changing circumstances of modern family life and, instead, held that any right to seek visitation would have to come from the Legislature. This article seeks to demonstrate that, properly understood, Matter of Ronald FF did the opposite. It actually was the case that changed the common law and, for the first time, denied persons who had a significant relationship with a child to seek court-ordered visitation over parental objection. I believe this article has important implications not only for reform in New York, but in those many other jurisdictions that today prohibit de facto parents from seeking visitation orders.

Keywords: third-party visitation, de facto parents, custody and visitation

Working Paper Series