Date: Sep 19, 2026

Preconception Co‑Parenting Agreements Extend to Later‑Conceived Siblings Absent Proof of Termination; Best-Interests Inquiry Follows Standing

1. Introduction

Matter of Kelly C. v Chaya E. (2026 NY Slip Op 05306) is a Family Court Act article 6 parental-access case arising from a long-term romantic relationship in which one partner (Chaya) conceived and gave birth via intrauterine insemination to two children—R. E. (2011) and N. E. (2013)—during the parties’ cohabitation (2009–2017). The other partner (Kelly), who is neither the biological nor adoptive parent, petitioned in 2017 for parental access, alleging a mutual preconception agreement to conceive and raise the children together.

The key threshold issue was standing: whether Kelly established parental status sufficient to seek custody/visitation under Domestic Relations Law § 70 as recognized in Matter of Brooke S.B. v Elizabeth A.C.C.. The dispute focused on whether the parties’ asserted preconception agreement covered (and remained in effect through) the conception of N. E., and whether a best-interests analysis is part of the standing determination.

2. Summary of the Opinion

The Appellate Division, Second Department:

Granted leave to appeal by deeming the notice of appeal an application for leave (Family Ct Act § 1112[a]).
Affirmed the order insofar as cross-appealed: Kelly proved by clear and convincing evidence a preconception agreement as to R. E., establishing standing to seek parental access with R. E.
Reversed on the facts insofar as appealed: the record did not support the Family Court’s conclusion that the parties’ preconception agreement terminated before N. E.’s conception. The court held Kelly also proved, by clear and convincing evidence, a preconception agreement in effect as to N. E., thus establishing standing to seek parental access with N. E.
Remitted for a hearing on the best interests of N. E. regarding parental access (Domestic Relations Law § 70).
Treated equitable estoppel issues as academic given the standing determination.

3. Analysis

3.1. Precedents Cited

A. Deference to referees and credibility findings

The court reiterated the standard for confirming a referee’s report: it should be confirmed when findings are substantially supported and credibility issues are clearly resolved, citing Wells Fargo Bank, N.A. v Emanuel and Matter of Stewart v Moseley. It also emphasized deference to Family Court credibility determinations, citing Matter of Alterman v Shmushkovich (quoting Matter of Ferrer v Brown).

Importantly, the Second Department used these cases to distinguish between (i) deference to credibility determinations (which it did not disturb) and (ii) appellate authority to correct factual conclusions that are not supported by the record (which it did in reversing as to N. E.).

B. Standing for nonbiological, nonadoptive partners under Brooke S.B.

The opinion squarely applies Matter of Brooke S.B. v Elizabeth A.C.C., reaffirming that standing exists where a partner proves by clear and convincing evidence that the parties agreed to conceive and raise the child together. It also cites Matter of Kerry D. v Deena D. for the principle that such a partner must first demonstrate parental status to petition under Domestic Relations Law § 70.

To define the evidentiary burden, the court cited Matter of Preller v Collesano (quoting Matter of Gail R. [Barron]) for what “clear and convincing evidence” means: evidence making it highly probable that what is claimed actually happened.

C. Application to multi-child family planning and alleged termination of agreement

For the proposition that a preconception agreement—proven by conduct, planning, and shared intent—can establish standing, the court relied on Matter of Scott v Adrat and Matter of Heather NN. v Vinnette OO., both of which illustrate how courts evaluate intent-based parentage through the parties’ planning and actions.

The Family Court had concluded the agreement ended prior to N. E.’s conception; the Second Department rejected that factual conclusion as unsupported, distinguishing Matter of K.G. v C.H. (cited with “cf.”) as a case where the record supported a different result regarding termination/absence of the required agreement.

D. Appellate review of facts even where credibility is not disturbed

The court relied on CPLR 5501[c] and People v Turriago to underline its “broad” scope of review as an intermediate appellate court: it may reverse factual determinations not supported by the record even if credibility findings remain intact. This principle did the work in correcting the Family Court’s timing finding about when the relationship and agreement allegedly deteriorated.

E. Comparative authority on intent-based parentage

Although not binding, the court situated New York’s approach within a broader national trend:

Sinnott v Peck (Vermont): legal status may arise from mutual agreement, co-parenting conduct, and absence of another putative parent.
Glover v Junior (Pennsylvania): recognizes “intent-based parentage” without biology, adoption, marital presumption, or enforceable ART contract.
Conover v Conover (Maryland): discusses de facto/psychological parent standing.

These citations reinforce that preconception intent can be a principled basis for parentage where family formation occurred through assisted reproduction and planned co-parenting.

3.2. Legal Reasoning

A. The standing framework

The court applied a two-step structure:

Threshold standing (Brooke S.B.): whether Kelly proved, by clear and convincing evidence, a mutual preconception agreement to conceive and raise the child.
Merits/best interests (Domestic Relations Law § 70): only after standing is established does the court evaluate whether parental access is in the child’s best interests.

B. R. E.: standing supported by clear and convincing evidence

The court held the record clearly supported the referee’s and Family Court’s findings as to R. E. The evidence included: committed relationship, extensive discussions about parenting and upbringing, joint donor selection (including donor traits reflecting Kelly), Kelly’s participation in naming and preparation, presence at birth, and shared caregiving. Under Matter of Brooke S.B. v Elizabeth A.C.C., this satisfied standing.

C. N. E.: reversal because termination finding lacked record support

The pivotal move was separating credibility from inference. The Family Court accepted credibility findings but drew a critical inference: that the relationship and co-parenting agreement deteriorated “between” the births, thus terminating before N. E.’s conception. The Second Department found that inference unsupported and internally inconsistent with other adopted findings—particularly that deterioration occurred “after” N. E. was born.

The credited evidence showed the parties planned N. E.’s conception and birth in substantially the same manner as R. E.’s; both children were conceived through the same process and donor chosen together; and the family functioned as a single household early on. Additionally, the court highlighted the finding that Chaya continued to refer to Kelly as the children’s other parent, and that the irreparable breakdown in co-parenting occurred later (the kindergarten-enrollment dispute), well after N. E.’s birth. On these facts, the court concluded there was no adequate basis to find the agreement terminated before N. E.’s conception.

D. Best interests is not part of standing

Responding to the attorney for the children, the court held that best interests does not enter into the threshold standing inquiry under Matter of Brooke S.B. v Elizabeth A.C.C., again citing that case and Matter of Kerry D. v Deena D. Standing is determined first; best interests is a separate, subsequent inquiry. Accordingly, the court remitted for a best-interests hearing for N. E.

E. Equitable estoppel rendered academic

Because Kelly’s standing as to N. E. was established via the preconception agreement route, the court declined to reach equitable estoppel arguments, deeming them academic.

3.3. Impact

Continuity of a multi-child preconception agreement: The decision signals that where the factfinder credits evidence of an agreement to have and raise “multiple children,” courts should be cautious about finding termination between siblings absent concrete record proof. A generalized “relationship deterioration” narrative will not suffice if the record shows continued planning and functioning co-parenting through conception/birth of the later child.
Sharper separation of standing and best interests: The opinion reinforces procedural discipline in Brooke S.B. litigation—standing first, best interests second—reducing the risk that best-interests considerations subtly influence the threshold legal-parentage determination.
Appellate correction of unsupported factual inferences: By invoking CPLR 5501[c] and People v Turriago, the court underscores that even with undisturbed credibility findings, intermediate appellate courts can reverse when the lower court’s factual conclusions do not follow from the credited record.
Broader legitimacy of intent-based parentage: The comparative citations (Vermont, Pennsylvania, Maryland) may encourage further doctrinal development in New York toward coherent treatment of planned families formed through assisted reproduction—especially where no other putative parent is present.

4. Complex Concepts Simplified

Standing: The legal right to ask the court for custody or visitation. Here, Kelly needed to prove she is a “parent” within the meaning of New York law as expanded by Brooke S.B.
Preconception agreement: An understanding (often informal) reached before conception that the parties will bring a child into their family and raise the child together as co-parents. It can be shown through planning, communications, and conduct—not necessarily a written contract.
Clear and convincing evidence: A heightened standard of proof requiring that the claim be highly probable (more demanding than “more likely than not,” less than “beyond a reasonable doubt”).
Equitable estoppel: A fairness doctrine that can prevent a person from denying parentage when their conduct led a child (or another party) to rely on a parent-child relationship. The court did not decide it here because standing was established on other grounds.
Remittal: Sending the case back to the trial court for further proceedings. Here, the Family Court must now conduct a best-interests hearing for N. E.

5. Conclusion

Matter of Kelly C. v Chaya E. strengthens the operational reach of Matter of Brooke S.B. v Elizabeth A.C.C. in multi-child planned-family contexts. The Second Department held that where the record—through credited testimony, corroborating witnesses, and contemporaneous communications—shows a mutual intent to conceive and raise children together, a court should not find the agreement terminated before the conception of a later-born sibling without solid evidentiary support. The decision also reiterates a clean separation between the threshold standing inquiry and the later best-interests determination, and it demonstrates the appellate court’s willingness to correct unsupported factual inferences even while respecting credibility findings. The practical result is a remittal for a best-interests hearing for N. E., with Kelly recognized as having standing to seek parental access to both children.