by William Kanellopoulos*
As same-sex marriage became legally recognized nationally and assisted reproduction technologies developed, the law has adapted to protect parent-child relationships that exist outside traditional models. A logical step in this evolution is recognizing that three individuals may simultaneously have standing to seek custody when they intentionally conceive and raise a child together. This Contribution argues that New York state courts should interpret Domestic Relations Law Section 70 to permit tri-parentage arrangements because doing so (1) aligns with the statute’s plain language and purpose, (2) reflects established precedent protecting parent-child bonds, and (3) honors the reasonable expectations of families who have structured their lives around a non-traditional, three-parent model.
A married couple invites a third person to help conceive a child. All three adults jointly plan for the child’s arrival. The child is born, and all three adults present themselves as parents. The biological parents have imbued reasonable expectations in both the third parent and the child. Allowing either biological parent to later disclaim the third parent’s status, particularly after a biological parent’s relationship with the third parent breaks down, would amount to the sort of injustice the doctrine of equitable estoppel seeks to prevent. The doctrine of equitable estoppel operates by preventing parties from enforcing rights that would “work injustice” upon someone who reasonably relied on their prior conduct and was misled as a result.1 The third parent has invested time, resources, and emotional energy into raising the child. The biological parents encouraged this arrangement. The child has known three parents for their entire life. Equity, sound statutory interpretation, and established precedent demand that New York state law recognize what all parties understand: the child has three parents.
In New York, the central statutory question regarding tri-parent arrangements is whether Domestic Relations Law § 70(a), which states that “either parent” may seek custody, necessarily limits a child to two parents at any given time.2 While some state courts have interpreted “either” as creating a binary,3 that reading is neither compelled by the statute’s text nor consistent with its purpose.
The plain meaning of “either” certainly can be “one or the other of two,” but it can also function as a distributive determiner meaning “each of two.”4 When § 70(a) states that “either parent” may seek custody, it establishes that each parent has standing to petition. Standing is the legal capacity to bring a petition before the court. Standing must be established before the court can even consider the merits of a petition.5 The statute does not state “only two parents” or “no more than two parents” may petition for custody. Rather, it creates a mechanism through which any person who qualifies as a parent under the law may seek custody. Therefore, § 70’s use of “either” establishes that each parent has standing to petition for custody or visitation; it does not dictate how many parents might exist.
Indeed, this interpretation aligns with how courts have approached the word “parent” in § 70. In Brooke S.B. v. Elizabeth A.C.C., the New York Court of Appeals recognized that “parent” includes non-biological, non-adoptive partners who intended to jointly raise a child.6 If the definition of “parent” has evolved to include functional parents beyond biological progenitors, then the number of parents who may simultaneously hold that status should similarly be capable of expansion.
The purpose of Domestic Relations Law § 70 is to protect children’s relationships with their parents and to determine custody based on a child’s best interests.7 Arbitrarily capping the number of recognized parents at two, regardless of the child’s actual family structure, undermines this purpose. First, this forces courts to choose between functionally equivalent parents, often based on formalistic criteria such as biology or the particulars of a birth certificate, rather than on the substantive nature of the parent-child relationship.8 In cases where three adults have jointly planned for a child’s birth, jointly cared for the child, and jointly presented themselves as the child’s parents, selecting only two for legal recognition fails to account for the child’s lived reality. Second, denying standing to a third parent creates instability for the child.9 If their relationship with the legally recognized parents dissolves, the third parent has no guaranteed right to maintain contact with the child.10 This is the exact harm that Brooke S.B. sought to prevent when it extended standing to non-biological parents.11 Finally, a rigid two-parent rule ignores the diversity of family structures that have always existed and that state courts have in recent years begun to protect: stepparents, grandparents raising grandchildren, same-sex couples, and other non-traditional families have all been accommodated within New York family law.12 Tri-parent families represent another variation that, when intentionally created and beneficial to the child, warrant similar recognition.
While some courts have resisted tri-parentage arrangements, citing Brooke S.B. and Tomeka N.H. as establishing a two-parent cap,13 this reliance is misplaced as these cases do not foreclose the recognition of intentional tri-parent families. Brooke S.B. held that a non-biological, non-adoptive parent could establish standing under § 70 by demonstrating an intent to jointly conceive and raise a child.14 It was in a footnote, mere dicta, that the Court of Appeals stated that “the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time.”15 The case involved only two parties seeking custody, however, and the court had no occasion to examine whether intentional tri-parent arrangements could satisfy § 70’s requirements.16 In fact, Brooke S.B.’s central holding supports tri-parentage recognition. The case established that intent matters more than biology in determining parentage.17 If two individuals can plan for a child’s conception and jointly assume parental responsibilities such that both qualify as parents, then three individuals who do the same should similarly qualify, regardless of contravening dicta.18
Several trial courts in New York have found tri-parentage arrangements permissible and granted standing to three parents petitioning for custody. In Dawn M. v. Michael M., a “throuple” consisting of a married couple and an unmarried woman jointly planned for, conceived, and raised a child together.19 The court held that tri-custody was appropriate because the parties had clearly agreed, prior to conception, to raise the child as three parents, and the child regarded all three as their parents.20 Notably, the Dawn M. court explicitly found that “tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B.,” given the reality that some children are being raised in intentional three-parent arrangements.21 Likewise, in Raymond T. v. Samantha G., a same-sex male couple and a single woman agreed that the woman would conceive a child with one of the men, and all three adults would parent together.22 The court found that all three had standing under § 70 because they jointly made decisions about the pregnancy and birth, jointly decided what the child would call each of them, and jointly assumed parental responsibilities from birth.23 This demonstrates that several New York appellate courts have already accepted that more than two individuals can have standing under § 70. As these cases recognize, tri-parentage is not some theoretical abstraction, but a lived reality worthy of legal protection in New York.
Opponents of tri-parentage argue that tri-parent custody arrangements create unworkable scheduling challenges and undermine the stability young children need.24 Some scholars have likewise cautioned that if too many parents attempt to manage a child’s development, that development may be stunted as a consequence.25 These practical concerns, however, do not justify a prohibition on tri-parent standing. First, courts already manage complex custody arrangements involving several actors, including parents, stepparents, and grandparents.26 Tri-parent arrangements cannot therefore be deemed categorically unworkable.27 Second, scheduling concerns assume that all three parents will demand equal custody time. In reality, courts can and do structure custody arrangements based on practical considerations, with one parent having primary custody and others having regular but more limited parenting time.28 Third, the concern about child stability serves both sides of the argument: for a child who has been raised from birth by three parents, denying legal recognition for one parent disrupts the stability that the child has always known.
Another argument against judicial recognition of tri-parentage is structural: if New York law should recognize more than two parents, why not wait for the legislature to make that determination? But in properly interpreting this statute, courts would not be rewriting it. Because § 70’s language can reasonably be interpreted to permit tri-parentage, then according legal recognition is not judicial activism but faithful statutory interpretation. After all, New York courts have long played a role in the evolution of family law. In Brooke S.B., the Court of Appeals extended parentage to same-sex partners not through legislative amendment but judicial interpretation.29 Of course, if the legislature ultimately disagrees with judicial recognition of tri-parentage, it can amend the statute to make its intent more clear.
New York would not be alone in recognizing more than two legal parents. California has explicitly permitted courts to recognize more than two parents when failure to do so “would be detrimental to the child.”30 Maine, Washington, and Delaware have also enacted statutes allowing for more than two legal parents under appropriate circumstances.31 These jurisdictions have not experienced the issues of workability and justiciability that some fear might result from tri-parentage recognition. Instead, these states’ courts have developed practical frameworks for determining when multi-parentage serves the interests of children and how to structure custody and support obligations accordingly.32 New York courts are well-equipped to do the same.
To alleviate critics’ concerns of administrability, New York courts could adopt a framework akin to California’s “detriment standard” under its Family Code § 7612(c).33 California permits tri-parentage only when limiting the child to two parents would cause harm.34 This approach balances the concerns raised by opponents while protecting children in genuine tri-parent families. The statute requires courts to make two findings before recognizing more than two parents: first, that all three adults have legitimate claims to parentage based on biology, intent, or established parent-child relationships; and second, that recognizing only two parents “would be detrimental to the child.”35 In assessing detriment, courts consider the harm caused by removing a child from “a stable placement with a parent who has fulfilled the child’s physical and . . . psychological needs for care and affection” over a substantial period.36 Critically, California courts have interpreted this standard narrowly, applying it only in rare cases where a child “truly has more than two parents” who are parents “in every way.”37 By requiring proof of detriment, the standard protects established parent-child bonds while preventing opportunistic claims by individuals who were casually involved in a child’s life but were never truly intended as parents.
Even if New York courts hesitate to recognize tri-parentage as a per se rule, equitable principles compel recognition in cases where all three adults fostered the tri-parent relationship from the outset. In the parentage context, courts have applied estoppel to prevent biological parents from denying parentage when doing so would harm established parent-child bonds.38 The critical inquiry focuses on whether a parent “acquiesced in the establishment of a strong parent-child bond between the child and another” person.39 Under these circumstances, equity demands the preservation of the bond.
Domestic Relations Law § 70’s language does not prohibit tri-parentage; on the contrary, its plain text and statutory aim of protecting parent-child relationships is vindicated by granting standing to all parents in intentional tri-parent families. Lower state courts in New York have already found such arrangements permissible, and courts in other jurisdictions have developed workable frameworks for recognizing more than two parents. The recognition of tri-parent standing under Domestic Relations Law § 70 represents a logical extension of principles that New York courts have already embraced: that intent matters when determining parentage, that functional parent-child relationships deserve protection, and that the law should honor the reasonable expectations of parties who structure their families on mutual agreement.
* William Kanellopoulos is a J.D. Candidate at New York University School of Law. This Contribution addresses whether courts should recognize tri-parentage arrangements for standing purposes under New York Domestic Relations Law. The views expressed herein represent an argument that courts should consider, but do not necessarily represent the author’s personal views.
1. In re Shondel J. v. Mark D., 7 N.Y.3d 320, 326 (2006).
2. N.Y. Dom. Rel. Law § 70(a).
3. See In re Tomeka N.H. v. Jesus R., 122 N.Y.S.3d 461, 466 (App. Div. 2020); In re Shanna O. v. James P., 112 N.Y.S.3d 792, 794 (App. Div. 2019).
4. Either, Merriam-Webster’s Collegiate Dictionary (11th ed. 2024).
5. See In re Lynda D. v. Stacy C., 830 N.Y.S.2d 881, 882 (App. Div. 2007).
6. Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 28 (2016).
7. In re Tomeka, 183 N.Y.S3d at 470 (Winslow, J. dissenting).
8. See In re Tomeka, 122 N.Y.S.3d at 468 (denying standing to a petitioner who had actively parented the child for seven years in favor of a biological father who was absent for the first three years of the child’s life and never paid child support).
9. Standing is the legal capacity to bring a petition for custody or visitation of a child before the court. See In re Lynda D., 830 N.Y.S.2d at 882.
10. In re Tomeka, 183 N.Y.S3d at 470 (Winslow, J. dissenting).
11. See Brooke S.B., 28 N.Y.3d at 24–25.
12. See id. at 20; see also Dom. Rel § 72 (providing that grandparents can petition for custody rights).
13. See In re Tomeka, 122 N.Y.S.3d at 469; In re Shanna O., 112 N.Y.S.3d at 794.
14. Brooke S.B., 28 N.Y.3d at 28.
15. Id. at 18.
16. In re Tomeka, 183 N.Y.S3d at 473 (Winslow, J. dissenting).
17. See Brooke S.B., 28 N.Y.3d at 25 (noting a growing body of social science revealing the “trauma children suffer as a result of separation from a primary attachment figure—such as a de facto parent—regardless of that figure’s biological or adoptive ties to the children.”).
18. See id. at 27–28.
19. Dawn M. v. Michael M., 47 N.Y.S.3d 898, 900 (Sup. Ct. 2017).
20. Id. at 903.
21. Id.
22. Raymond T. v. Samantha G., 74 N.Y.S.3d 730, 731 (Fam. Ct. 2018).
23. Id. at 734.
24. See In re T.H. v. J.R., 84 N.Y.S.3d 676, 685 (Fam. Ct. 2018) (noting that “a three-way shared parenting arrangement would likely be unworkable.”).
25. See Margaret F. Brining, Family, Law, and Community: Supporting the Covenant 119 (2010).
26. See Dawn M., 47 N.Y.S.3d at 901 (finding a three-parent arrangement workable because the parties were not so embattled and embittered that they could not cooperate in the child’s best interests).
27. Id.
28. See In re Coleman v. Millington, 32 N.Y.S.3d 707, 708 (App. Div. 2016) (affirming the trial court’s decision to grant a father primary physical custody and establishing a schedule for more limited time spent with the mother); see also In re Sabrina B. v. Jeffrey B., 118 N.Y.S.3d 257, 261 (App. Div. 2020) (concluding the Family Court’s complex custody/parenting schedule for the mother and father was not an abuse of discretion).
29. Brooke S.B., 28 N.Y.3d at 28.
30. Cal. Fam. Code § 7612(c) (West 2020).
31. See Me. Rev. Stat. Ann. tit. 19-A, § 1891; Wash. Rev. Code § 26.26A.440; Del. Code Ann. tit. 13, § 8-201(a)(5).
32. See In re M.Z., 209 Cal. Rptr. 3d 397, 405 (Dep’t Super. Ct. 2016); Shultz v. Satchel, 201 A.3d 1162 (Del. 2019) (demonstrating how courts may review petitions for de facto parentage determination under the Delaware statute).
33. See Cal. Fam. § 7612(c).
34. Id.
35. Id.
36. Id.
37. In re Donovan L., 244 Cal. App. 4th 1075, 1089–90 (2016).
38. Mancinelli v. Mancinelli, 610 N.Y.S.2d 104, 105 (App. Div. 1994).
39. In re Shondel J., 7 N.Y.3d at 327.