Same-Sex Custody Cases in New York: Who Qualifies as a Parent
Same-sex custody disputes can raise a threshold question that does not usually exist in traditional custody cases: is the person seeking custody or visitation legally recognized as a parent in the first place?
The Appellate Division, Second Department addressed that issue again in Matter of Kelly C. v. Chaya E., 2026 NY Slip Op 05306, decided September 16, 2026. The case is particularly important for New York City couples who created families through donor insemination without both parents having a biological or adoptive relationship to the children.
The Family Structure
Kelly and Chaya began a romantic relationship in 2009 and lived together until 2017. During the relationship, Chaya underwent intrauterine insemination and gave birth to two children, one in 2011 and another in 2013. Kelly was not the biological parent and had not adopted either child.
When the relationship ended, Kelly sought parental access with both children. Her legal argument was that the couple had agreed before conception to raise children together as co-parents.
Under New York law, a nonbiological and nonadoptive partner generally must first establish parental standing before the court can even consider custody or visitation. The Court of Appeals established in Matter of Brooke S.B. v. Elizabeth A.C.C. that a person can establish standing by proving, through clear and convincing evidence, that the parties agreed before conception to conceive and raise the child together. The Second Department reaffirmed that rule in Kelly C.
What Evidence Can Prove a Preconception Agreement?
The case provides a useful roadmap for what courts may consider.
No single written contract declared that Kelly would be a parent. Instead, the court looked at the parties’ conduct, communications, and testimony surrounding the creation of their family.
The evidence showed that the couple had extensive discussions about having children, parenting styles, religion, and cultural upbringing. They selected a sperm donor together, including choosing someone who shared Kelly’s physical characteristics. Kelly participated in naming the first child, prepared for the birth, was present at the delivery, and helped raise the child. Nonparty witnesses also testified about conversations they had observed between the couple, and contemporaneous private communications supported Kelly’s account.
The Second Department concluded that this evidence clearly established an agreement to conceive and co-parent the first child.
The more difficult question involved the second child.
Does a Deteriorating Relationship Cancel the Parenting Agreement?
Family Court concluded that the parties’ relationship had deteriorated before the second child was conceived and therefore found that the original parenting agreement no longer applied. The Second Department disagreed.
The appellate court reviewed the record and found that the evidence did not support the conclusion that the co-parenting agreement had ended before the second conception. Witnesses described the parties planning for the second child in much the same way they planned for the first. Both children were conceived through the same reproductive process using the same donor, both were born during the relationship, and both were initially raised in the same household. Chaya also continued to refer to Kelly as the children’s other parent after the second child was born.
The court therefore held that Kelly had established parental standing as to both children.
That is the central lesson from the case: a later deterioration in the adults’ romantic relationship does not automatically erase a preconception agreement to create and raise a family together.
Standing Is Not the Same as Winning Custody or Visitation
The Second Department specifically held that the children’s best interests were not part of the initial standing determination. First, the court decides whether the nonbiological, nonadoptive partner qualifies as a parent under New York law. Only after establishing parental standing does the court move to the traditional custody question: what arrangement is in the child’s best interests?
The case was sent back to Kings County Family Court for a hearing to determine whether, and to what extent, parental access between Kelly and the second child is in that child’s best interests.
Why This Case Matters for LGBTQ+ Parents in New York City
For same-sex couples in Brooklyn, Queens, Manhattan, the Bronx, Staten Island, Nassau, and Suffolk, Kelly C. reinforces how important the history of family formation can become if a relationship later ends.
A court may examine text messages, emails, conversations with friends and family, fertility-clinic decisions, donor selection, pregnancy planning, birth involvement, financial contributions, and the parties’ actual conduct as parents.
The absence of a biological connection does not necessarily mean the absence of parental rights. Likewise, the absence of a formal adoption does not automatically end the inquiry.
However, litigation over parental standing can be extraordinarily fact-intensive. A second-parent adoption or formal parentage order can eliminate much of that uncertainty before a relationship ever breaks down.
Kelly C. also makes the broader point that New York law increasingly recognizes that families are created in many different ways. Biology is important, but it is not always the only path to legal parenthood.
At Mindin & Mindin, P.C., we represent parents in complex New York custody and parental-access disputes, including cases involving same-sex couples, assisted reproduction, nonbiological parents, and contested parental standing. If your relationship has ended and someone is challenging your status as a parent, getting legal advice early can be critical. Contact our office for a confidential consultation regarding your New York custody or parenting-rights case.