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N.Y. Family Court Judge Uses Equitable Estoppel to Find Co-Parent Standing in the Absence of Pre-Conception Agreement

Posted on: October 3rd, 2017 by Art Leonard No Comments

Filling a gap in New York family law left open by the New York Court of Appeals’ 2016 decision In the Matter of Brooke S.B., 28 N.Y.3d 1, 61 N.E.3d 48839 N.Y.S.3d 89, Nassau County Family Court Judge Thomas Rademaker held in J.C. v. N.P., a decision published by the New York Law Journal on September 27, 2017, that the doctrine of equitable estoppel could be used to establish the standing of a lesbian co-parent who could not show that she and her former partner, the birth mother, had a written pre-conception agreement concerning parentage of the two children that were born during their relationship. (At the time of writing, the opinion had not yet appeared in the Lexis or Westlaw databases or been assigned a N.Y. Slip Opinion number, and the version of the opinion published on the Law Journal website did not include a docket number, but bore the date of publication of September 27.) In Brooke S.B., a similar case in other respects, the Court of Appeals had relied on the plaintiff’s allegation of the existence of a pre-conception agreement in determining the standing of an unmarried co-parent to seek custody, and stated “we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.”

The Court of Appeals’ statement left an ambiguity for lower courts confronted by cases such as J.C. v. N.P.. Does “if any” mean that co-parents who lack evidence of a pre-conception agreement are categorically barred from establishing standing to seek custody and visitation after their relationship with the child’s birth mother ends, as would be the case under the older precedents overruled in Brooke?  Or, to the contrary, could it just mean that lower courts have room to consider other legal doctrines that would enable them to reach what should be the overriding question in such custody/visitation disputes: what is in the best interest of the children?

Judge Rademaker opted for the second approach. “It is doubtful that the Court of Appeals meant that no test should apply and it is beyond doubt that the Court of Appeals carefully tailored their holding to the fact specific case before them.  Simply put, the holding in Brooke applies to situations when a pre-conception agreement is proven to exist by clear and convincing evidence.”  Further, the “if any” comment struck Rademaker as showing that the Court of Appeals felt it was premature to take the next step of allowing a co-parent to establish standing based on events that occurred upon and after the birth of the child until an appropriate case arose that required determination of that question.  While finding that relying solely on a “best interest of the child” test would provide “far too amorphous a standard” to determine co-parent standing, wrote Rademaker, “Given precedent, the social and legal acknowledgement of same sex marital status, parentage, and the like, this Court looks to the doctrine of equitable estoppel for guidance in the instant matter.”  Rademaker explained that this doctrine has been frequently pressed into service by New York courts in determining that a man without a biological/genetic relationship to a child can be deemed a parent in certain circumstances, and he noted that those opinions emphasized that the overriding factor in such cases should be the best interest of the child.

“To prevail on the grounds of estoppel, the moving party bears the burden of proving, by clear and convincing evidence, that she has the right to the relief being sought,” the judge wrote, disclaiming any intent to create rigid guidelines or lists of factors that must be proven, while taking note of the factors that had been cited by the courts in cases determining men’s status as fathers.

In this case, the court found, J.C. and N.P. began their relationship around January 10, 2014, at which time N.P. was still married to, but separated from, another woman. Within days, N.P. became pregnant through donor insemination, and J.C. participated fully during the pregnancy, accompanying N.P. on doctor visits.  “Throughout their relationship,” Rademaker found, “including the pregnancies, the parties lived together in each other’s homes which they separately owned, dividing time between the two homes depending upon the season and work schedules.”  When their first child, C.C., was born on September 29, 2014, they brought him to J.C.’s house, where a nursery room had been prepared for the child.  Through the women’s subsequent relationship, including the birth to N.P. of a second child conceived through donor insemination who was born in May 2016, the women both functioned as parents, were regarded as a family by the children’s pediatrician, neighbors, and their other family members.  The two children are described by the court as “biological siblings,” presumably because the same man served as sperm donor for both children.

There was also documentary evidence, in the form of an email N.P. sent to her parents on October 16, 2015, as she and J.C. were going to the airport for N.P. to travel, in which she stated: “Since I have a child, don’t have a legal will and [JC] and I aren’t married yet, I figured I would put my wishes in writing just in case of an unfortunate event and I don’t return from Miami safely. Since [JC] is [CC]’s co-parent and other mommy, my wish is for her to have full custody and raise [CC] as her own in the instance I’m not on this earth to raise her myself.  Thank you!”  Although N.P. testified that this was sent to assuage J.C.’s concerns, the court found no reason to believe the statement was sincerely meant.

In a footnote, Judge Rademaker specifically rejected N.P.’s argument that J.C.’s standing claim was barred by the fact that N.P. was married to another woman at the time of C.C.’s conception. “It has been held that the presumption of legitimacy is a presumption of a biological relationship, not a legal relationship,” he wrote, “and therefore has no application to same-gender married couples,” citing Matter of Paczkowski v. Paczkowski, 128 App. Div. 3d 968 (2nd Dept. 2001).  “Moreover,” he wrote, “respondent’s judgment of divorce from her prior spouse clearly rebuts any presumption that C.C. is a child of that marriage, and respondent is bound by that determination under the doctrine of collateral estoppel.”  He also rejected N.P.’s argument that the failure of J.C. to adopt the children due to N.P.’s negative response to J.C.’s suggestions should carry more weight than the tangible evidence of N.P. treating J.C. as a parent and sharing parenting responsibilities with her.  “Simply stated,” wrote the judge, “respondent may have been apprehensive at times about the course of the relationship and perhaps even embarrassed by comments made by petitioner at particular family events but respondent’s daily words and actions with and toward petitioner, as well as CC and AJ [the second child], throughout the relationships were, in fact, quite different.”

The parties’ relationship ended early in 2017 and they separated, but J.C. continued “to see, care for, and tend to the children,” and they all went together on a ski weekend trip in February “together with the children sharing the same room together with the children after the relationship purportedly ended.”

Rademaker found that J.C. had “established by clear and convincing evidence that respondent created, fostered, furthered, and nurtured a parent-like relationship between the children and petitioner. Commencing just a few days after the older child’s conception, and continuing well after the demise of the parties’ relationship, respondent acted as if petitioner was a parent and acknowledged to petitioner, the children, and others that petition was essentially a parent, to wit, a “Mommy,” and both respondent and the children benefitted from this parent-like relationship on a daily basis for years.  Petitioner is adjudicated to be a parent of the subject children and therefore, has standing to seek visitation and custody.”

The next step will be for the court to determine whether it is in the best interest of the children for J.C. to be granted custody and visitation rights.

The Law Journal article reporting on the decision suggested that this was the “first” New York court decision to “offer an answer” to the question whether a co-parent could be adjudicated to be a parent in the absence of a pre-conception agreement. Neither the article nor the opinion identified counsel for the parties.  In a footnote, Judge Rademaker acknowledged the “invaluable assistance of Court Attorney Jeremy Jorgensen in the preparation of this decision.”

 

Manhattan Court Finds Former Same-Sex Partner of Adoptive Mother Lacks Standing to Contest Custody of the Child

Posted on: April 24th, 2017 by Art Leonard No Comments

Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place.  K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.).  In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department, in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.

Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling.  In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated.  This new case posed different facts.

In its Brooke S.B. ruling, written by the late Judge Sheila Abdus-Salaam, the Court of Appeals had cautiously abandoned its prior bright line test, under which a biologically-unrelated same-sex co-parent was treated as a legal stranger without standing to seek custody or visitation, making an exception for situations where a parental relationship was created by mutual consent within the context of donor insemination.  “Because we necessarily decide these cases based on the facts presented to us,” wrote Judge Abdus-Salaam in that case, “it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement.  Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.”

Judge Nervo’s opinion referred to the parties by first initials, but press reporting after his opinion was released included their names.

Gunn and Hamilton “were in a relationship from 2007 to 2009, entering into a cohabitation agreement on May 18, 2007,” wrote the judge.  “It is undisputed that during their relationship, they entered into a plan to adopt and raise a child together.  It is also undisputed that the parties’ relationship deteriorated over time and they entered into a separation agreement on May 28, 2010.”

About ten months later, Hamilton learned that a child was available for adoption in Ethiopia and began to take the steps to complete the adoption.  Gunn claims that despite their separation, she facilitated the adoption through a substantial monetary payment as part of their separation agreement, which made it possible for Hamilton to “establish a home sufficient to pass inspection by the adoption agency.”  She also arranged a business trip to be able to travel with Hamilton and the child, Abush, on the London-to-New York part of Hamilton’s trip home with the child after obtaining custody of him in Ethiopia.  Gunn also presented evidence of her continuing involvement with the child after the return to New York, although Gunn conceded that “her involvement with the child was limited because [Hamilton] would disapprove.”

On the other hand, Hamilton argued that the couples’ plan to adopt a child and raise the child together “dissolved contemporaneously with the dissolution of the parties’ relationship.”  She argued that Gunn’s involvement after Hamilton adopted the child was “only a supportive role as a close friend” of Hamilton and the child.  She contended that Gunn was “merely a godmother,” not a parent.  She also argued that she did not “encourage, facilitate or condone a parental relationship” between Gunn and the boy, who is now seven years old.

Thus, this case did not precisely map the factual contours approved by the Court of Appeals in the Brooke S.B. case.  In attempting to adapt that ruling and apply it to these facts, Judge Nervo interpreted the earlier case to extend to an adoption situation, but only if the plaintiff could show, by clear and convincing evidence, that the parties had planned to adopt the child and raise it together and carried out their plan within the context of their continuing relationship.  While these parties had such a plan prior to their separation, he found, in order to meet this test, the plan had to have continued through the adoption process and the raising of the child, which he held did not occur in this case.

The timing of Gunn’s lawsuit is interesting.  Although Hamilton adopted Abush in 2011, Gunn did not file her lawsuit until September 1, 2016, two days after the Court of Appeals decided Brooke S.B.  Prior to that decision, of course, her suit would have been blocked by the precedent that the Court of Appeals overruled, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991).  In an April 20 article about the case, the New York Times reported that Gunn went to court “to prevent her former partner . . . from moving to her native London” with the child.  Gunn sought immediate relief when filing her complaint, which first went to Justice Matthew F. Cooper, who issued an interim order restraining Hamilton from relocating Abush to London while the case was pending.  The matter was then assigned to Justice Nervo, who scheduled a hearing to begin just a week later, on September 8.  The hearing continued sporadically until February 16, 2017. Hamilton had responded to the complaint on September 6 with a motion to dismiss the case.  Gunn finished presenting her witnesses on November 23.  After evaluating Gunn’s evidence, Judge Nervo denied Hamilton’s motion to dismiss, finding that Gunn’s evidence, as yet uncontradicted, had established what lawyers call a prima facie case, a basis for concluding that she had a potential claim to parental standing.

However, after hearing Hamilton’s evidence, which ended on February 16, Justice Nervo concluded the factual and legal issues against Gunn, granted Hamilton’s motion to dismiss, denied Gunn’s motion and vacated the interim orders that had been issued by Justice Cooper. He also dissolved interim orders that had enabled Gunn to continue seeing the child while the case was ongoing.  However, recognizing that Gunn would likely appeal and could have grounds to argue that the Court of Appeals’ precedent should be given a broader reading, Nervo stayed his order for twenty days.  A prompt appeal and petition to the Appellate Division to preserve the interim relief might preserve the status quo while an appeal is considered.

Justice Nervo’s opinion includes a lengthy summary of the testimony presented by both parties, which led the judge to conclude that Gunn had fallen short of showing by clear and convincing evidence that she had a parental relationship with the child based on a mutual agreement with Hamilton.  “Upon the presentation of the evidence of both parties over 36 days of testimony, constituting a hearing transcript of 4,738 pages, 215 exhibits on behalf of petitioner and 126 exhibits on behalf of respondent, the court finds the petitioner has on numerous occasions stated that she did not want to be a parent and gave no indication to either respondent or third parties that she either wanted this role or acted as a parent,” wrote Nervo.  “Therefore, she has failed to establish by clear and convincing evidence that she has standing as a parent under Domestic Relations Law Section 70, as established In the Matter of Brooke S.B. v. Elizabeth A.C.C.”

The court never addressed the best interest of the child, usually a key finding in a custody dispute, because in order to put that issue into play, a plaintiff has first to establish her status as a parent or, under New York cases, show extraordinary circumstances in order to invoke the court’s authority to require a biological or adoptive parent to engage in a contest about the best interest of her child.  Part of Gunn’s argument on appeal will likely be that Brooke S.B. has implicitly overruled the extraordinary circumstances requirement in cases involving same-sex partners who had jointly planned to raise a child together, even if the case does not involve donor insemination or a continuous relationship of the women prior to the adoption.

Reading through Judge Nervo’s summary of the evidence, which is unlikely to be upset on appeal, as appellate courts generally refrain from second-guessing the factual findings of trial judges in custody and visitation cases unless there is an appearance of substantial bias against a party or failure to account for significant evidence in the hearing record, it sounds like he concluded that although Gunn had formed a relationship with Abush and there were some indications that it was deeper than a mere acquaintanceship or babysitter kind of relationship, on the other hand there was significant evidence that Gunn had expressed reservations during her relationship with Hamilton about the adoption plans and had never directly communicated to Hamilton after the adoption that she desired to take on the responsibility of being a co-parent of the child.  Since the Court of Appeals emphasized in its decision that standing would arise from a mutual agreement between the child’s biological or adoptive parent and her same-sex partner, and there was no sign of such an agreement at or after the time of this adoption, the case could not be made to fit precisely into the Court of Appeals precedent.

On the other hand, it may be open to the Appellate Division to take a different view, especially since the Court of Appeals disclaimed making a ruling on factual situations different from those in the cases it was deciding.  Clearly, the Court of Appeals rejected the bright line test of the old Alison D. v. Virginia M. case.  Whether it will countenance a broader exception to the standing rules than it carved out in Brooke S.B. is uncertain.

Gunn’s attorney, Nancy Chemtob, told the New York Times, “I believe that this decision doesn’t follow Brooke.”  The Times reported that “Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage.  ‘That would be scary to parents,’ she said.”

 

Arizona Appeals Court Adopts Gender-Neutral Construction of Paternity Statute in Same-Sex Couple Dispute

Posted on: October 14th, 2016 by Art Leonard No Comments

The Court of Appeals of Arizona ruled on October 11 that as a result of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that same-sex couples have a constitutional right to marry and that their marriages must receive equal treatment under the law to those of different-sex couples, the Arizona courts must construe the state’s paternity statute in a gender neutral way so that the same-sex spouse of a woman who gives birth enjoys the presumption of parental status. McLaughlin v. Jones, 2016 Ariz. App. LEXIS 256, 2016 WL 5929205 (Oct. 11, 2016).  Judge Philip Espinosa wrote for the unanimous three-judge panel.

Kimberly and Suzan were legally married in California in October 2008, shortly before voters approved Proposition 8, which enshrined a different-sex only marriage definition in the state constitution. Shortly thereafter, however, the California Supreme Court ruled that same-sex marriages contracted before the passage of Prop 8 remained valid under California law.  “The couple agreed to have a child through artificial insemination,” wrote Judge Espinosa, “using an anonymous sperm donor selected from a sperm bank.”  Suzan’s efforts to conceive this way were unsuccessful, but Kimberly became pregnant in 2010. Before their child was born, the women moved to Arizona, a state that did not then recognize their marriage or allow second-parent adoptions.

The women made a joint parenting agreement and executed mirror-image wills, declaring “they were to be equal parents of the child Kimberly was carrying,” wrote the court. After their son was born in June 2011, Suzan was the stay-at-home mom while Kimberly resumed her work as a physician.  The women’s relationship deteriorated, however, and when their son was almost two years old, Kimberly moved out of their home, taking the child with her and cutting off his contact with Suzan.

In April 2013, Suzan filed a petition for dissolution of the marriage and a petition for a court order recognizing her parental status in various ways, most significantly decision-making and parenting time. The matter came before Superior Court Judge Lori Jones in Pima County, who decided to stay the proceedings while marriage equality litigation was pending.  In January 2016, six months after the Supreme Court decided Obergefell, Kimberly moved to set the case for trial and Judge Jones ordered briefing concerning “the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity under an Arizona statute, Section 25-814(A).  In an April 7, 2016, ruling, Judge Jones found that it would violate Suzan’s 14th Amendment rights not to afford her the same presumption of parenthood that a husband would enjoy.  Thus, she ordered, the case should proceed as a “dissolution action with children.”

Kimberly then moved for a declaratory judgment about whether she would be permitted to introduce evidence to rebut the presumption. On May 2, Judge Jones ruled that Kimberly would not be permitted to attempt to rebut the presumption that Suzan was a parent of their son.  Jones found that there was nothing for Kimberly to rebut, adding that a “family presumption applies to same sex and opposite sex non-biological spouses married to a spouse who conceived a child during the marriage via artificial insemination.”  She relied on Section 25-501, a support statute which is applicable when a child is born as a result of donor insemination, finding that this “necessarily gives rise to parental rights in the non-biological spouse.”  Kimberly appealed this ruling.

On appeal, Kimberly argued that as the child’s biological mother, “she is, by definition, the only parent and therefore the only person who has parental rights, which are fundamental rights,” wrote Judge Espinosa, summarizing Kimberly’s argument. She contended that Judge Jones erroneously construed the paternity statute to encompass same-sex lesbian couples.  Suzan, in response, argued that because of Obergefell, parentage statutes “must be applied and interpreted in a gender-neutral manner so that same-sex couples’ fundamental marital rights are not restricted and they are afforded the same benefits of marriage as heterosexual couples and on the same terms,” wrote Espinosa.

The Arizona statute defining “legal parents” includes “biological” or “adoptive” parents, and “does not include a person whose paternity has not been established pursuant to Section 25-812 [acknowledgment of paternity] or Section 25-814 [presumptions of paternity].” The court found that Section 25-814(A)(1) applies to the McLaughlin case, assuming one applies a gender-neutral interpretation of the statutory language.  This provides that “a man is presumed to be the father of the child if 1. He and the mother of the child were married at any time in the ten months immediately preceding the birth.”

Judge Espinosa wrote, “Enacted well before the Supreme Court decided Obergefell, this statute was written with gender-specific language at a time when the marriage referred to in subsection (A)(1) could only be between a man and a woman.” While accepting Kimberly’s argument that Judge Jones should not have relied on the child support statute to determine Suzan’s status, the court rejected Kimberly’s argument that “it would be impossible and absurd to apply Section 25-841(A)(1) in a gender-neutral manner to give rise to presumption parenthood in Suzan.  Indeed, Obergefell mandates that we do so,” he continued, “and the plain language of the statute, as well as the purpose and policy behind it, are not in conflict with that application.”  Not to do that would deprive same-sex married couples of the same “terms and conditions of marriage” as are enjoyed by different-sex couples, which would be a clear violation of the Supreme Court’s mandate of equal treatment in Obergefell.

“The word ‘paternity’ therefore signifies more than biologically established paternity,” wrote Espinosa. “It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology.”  He pointed out that the long-established purpose of paternity statutes is “to provide financial support for the child of the natural parent.”  The marital presumption “is intended to assure that two parents will be required to provide support for a child born during the marriage” and serves the additional purpose “or preserving the family unit.”  For these propositions, the court relied on the Massachusetts Supreme Judicial Court’s ruling in Partanen v. Gallagher, decided just days earlier.  The court rejected Kimberly’s argument that there was any reason to treat men and women differently in this regard, after Obergefell.

As to Kimberly’s request to be able to rebut the presumption of parenthood, the court held that it “need not decide how the rebuttal provision in Section 25-814(C) applies in a same-sex marriage because we determine Kimberly is estopped from rebutting the presumption.  Equitable estoppel applies when a party engages in acts inconsistent with a position later adopted and the other party justifiably relies on those acts, resulting in an injury.”

In this case, it was uncontested that the women were lawfully married when Kimberly became pregnant as a result of a donor insemination process upon which both women agreed.  It is not disputed that their son was born during the marriage.  It is not disputed that Suzan was the stay-at-home mom and cared for their son until Kimberly “left the home with him.”  Furthermore, the women had made a written parenting agreement providing that they were to be equal parents of the child.  In that agreement, Kimberly agreed to “waive any constitutional, federal or state law that provide her with a greater right to custody and visitation than that enjoyed by Suzan.”  They even provided in the agreement that if their relationship broke down, Suzan would continue to enjoy parenting rights, and that if second-parent adoption became available in the jurisdiction where they lived, Suzan would adopt the child.  Since their partnership broke up before Obergefell was decided, however, Suzan never had an opportunity to adopt their son.

The court concluded that based on these uncontested facts, the doctrine of equitable estoppel applied, barring Kimberly from attempting to rebut the presumption that Suzan is a parent to their son.  “Suzan is the only parent other than Kimberly,” wrote Judge Espinosa, “and having two parents to love and support [their son] is in his best interest.  Under these circumstances, Kimberly is estopped from rebutting the presumption of parenthood pursuant to Section 25-814(C).”

Consequently, Kimberly’s appeal was denied, and the case will continue before Judge Jones as a dissolution with a child.  It will be up to Judge Jones in the first instance to determine whether it is in the best interest of the child to order Kimberly to allow Suzan to have a continuing relationship, including parenting time and decision-making authority.

Kimberly is represented by Keith Berkshire and Megan Lankford, Phoenix.  Suzan is represented by Campbell Law Group, Phoenix, and attorneys from the National Center for Lesbian Rights, San Francisco.  Appointed counsel for the child included law students and supervising faculty from various clinical programs, including the Family and Juvenile Law Certificate Program in Tucson, and Child and Family Law Clinic in Tucson, the Community Law Group, Tucson, and the Child and Family Law Clinic at the University of Arizona Rogers College of Law.

 

 

Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.

Federal Judge Orders Indiana to List Two Moms on Birth Certificates

Posted on: July 1st, 2016 by Art Leonard No Comments

U.S. District Judge Tanya Walton Pratt ruled on June 30 that Indiana was failing to comply with the Supreme Court’s mandate for marriage equality in Obergefell v. Hodges, decided last June 26, when the state refused to list the same-sex spouses of birth mothers on their children’s birth certificates.  Ruling on cases brought by several same-sex couples who were married before their children were born, Judge Pratt found that the mandate to afford equal marriage rights to same-sex couples included a requirement that the “parental presumption” applied to husbands of women who give birth should also be applied to their wives.  Henderson v. Adams, 2016 U.S. Dist. LEXIS 84916 (S.D. Ind.).

Judge Pratt explained that the usual procedure in Indiana for issuing birth certificates starts when hospital staff “work with the birth mother to complete the State of Indiana’s ‘Certificate of Live Birth Worksheet,’” which was created by the state as part of its Birth Registration System.  “Staff at the hospital upload the information provided on the Indiana Birth Worksheet to a State database.  The county health department then receives notification that birth information has been added to the database.  A notification letter to the birth mother is generated on a form provided by the State, which indicates that information has been received by the county health department and requests that the mother notify the county health department if there is an error with respect to the child’s identifying information.”  If the mother wants a birth certificate, she has to request one, which will then be generated out of the database.

One of the questions on the Worksheet is whether the birth mother is married.  If she answers “no,” she is asked whether a paternity affidavit has been completed for the child, in which case the person identified as the father will go into the database and be listed on the birth certificate.  If there has been no affidavit, then the space is left blank, even if the mother knows the identity of the child’s biological father, and the birth certificate will list only the mother.  If the answer is “yes,” the husband’s name will go into the database, and ultimately will be listed on the birth certificate.  Even if the child of a married couple is conceived with donated sperm, there is a presumption that the husband is the father, unless the mother takes steps during this initial information-gathering process to make clear that her husband is not the biological father.

Even though all of the plaintiff couples in this case are married, the state refused to accept same-sex spouses into the database or to list them on the birth certificate.  The state’s position was that the database and the birth certificates generated from it are supposed to create a true record of the biological parentage of the child, and that because a same-sex spouse of a birth mother is not biologically related to the child, listing her in the database and on the birth certificate would create a false record.  The state took the position that a same-sex spouse could only be listed in the database and the birth certificate if she adopted the child with the permission of the birth mother, a process involving expenses and delay, during which time the child would have only one legal parent.

Judge Pratt accepted the plaintiffs’ argument that “Indiana’s refusal to grant the status of parenthood to female spouses of artificially-inseminated birth mothers while granting the status of parenthood to male spouses of artificially-inseminated birth mother violates the Equal Protection Clause,” because it was sex discrimination, pure and simple.

Furthermore, sex discrimination requires heightened scrutiny, putting the burden on the state to justify its policy and show that it advances an important state interest.  Because the state presumes, without proof, that the husbands of birth mothers are the parents of their children, the policy does not, in fact, advance the state’s asserted interest of creating a “true” record of the child’s biological parents.  The state argued that it was the duty of the married birth mother to advise hospital staff while completing the Worksheet if her child was conceived through donor sperm so that her husband’s name would be excluded from the database, but this was clearly a spurious argument, since the Worksheet does not prompt hospital staff members to ask this question.

“The State Defendant’s argument that the birth mother should acknowledge that she is not married to the father of her child when she has been artificially inseminated or else she is committing fraud when she has been artificially inseminated is not consistent with the Indiana Birth Worksheet, Indiana law, or common sense,” wrote Judge Pratt.  “The Indiana Birth Worksheet asks, ‘are you married to the father of your child,’ yet it does not define ‘father.’  This term can mean different things to different women.  Common sense says that an artificially-inseminated woman married to a man who has joined in the decision for this method of conception, and who intends to treat the child as his own, would indicate that she is married to the father of her child.  Why would she indicate otherwise?”

Judge Pratt pointed out that the Worksheet, devised by the state, made no attempt to elicit the information that the State deemed to be so important, and, furthermore, “there is no warning of fraud or criminal liability.”  She pointed out that some other states had enacted specific statutory language to deal with the use of donor insemination by married couples and the issuance of appropriate birth certificates, but Indiana has failed to do so.  She pointed out, however, that in one such state, Wisconsin, litigation is pending because that state has also been refusing to list same-sex spouses on birth certificates.

Ultimately, she pointed out, the Worksheet process as set up by the state did not achieve its articulated purpose of creating a “true” record of biological parents, and was administered in a way that clearly discriminated against same-sex couples.  Rejecting the state’s argument that employing a parental presumption was not required under Obergefell’s mandate of equal marriage benefits, she pointed out, “the state created a benefit for married women based on their marriage to a man, which allows them to name their husband on their child’s birth certificate even when the husband is not the biological father.  Because of Baskin [the 7th Circuit’s marriage equality ruling] and Obergefell, this benefit –which is directly tied to marriage – must now be afforded to women married to women.”

In addition to finding an equal protection violation, Judge Pratt found a Due Process violation because in Obergefell the Supreme Court referred to both clauses of the 14th Amendment as a source of the freedom to marry.  Since the Supreme Court identified that freedom as a fundamental right, strict scrutiny would apply, and the state’s rationale for its position of this case was obviously insufficient to meet the “compelling interest” test, and Judge Pratt so found.  The judge concluded: “Given Indiana’s long-articulated interest in doing what is in the best interest of the child and given that the Indiana Legislature has stated the purpose of Title 31 is to protect, promote, and preserve Indiana families, there is no conceivable important governmental interest that would justify the different treatment for female spouses of artificially-inseminated birth mothers from the male spouses of artificially-inseminated birth mothers.  As other district courts have noted, the holding of Obergefell will inevitably require ‘sweeping change’ by extending to same-sex married couples all benefits afforded to opposite-sex married couples.  Those benefits must logically and reasonably include the recognition sought by Plaintiffs in this action.”

N.Y. Appellate Division Approves Comity for California Parentage Rights of Lesbian Co-Parent

Posted on: April 11th, 2016 by Art Leonard No Comments

The New York Appellate Division, Second Department, an intermediate appellate court based in Brooklyn, issued a unanimous ruling on April 6 affirming a decision by Suffolk County Family Court Judge Deborah Poulos recognizing the parental status of a lesbian co-parent, now resident in Arizona, who is seeking visitation with two children who were conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse.  The birth mother and children live in Suffolk County.  The case is Matter of Kelly S. v. Farah M., 2016 N.Y. App. Div. LEXIS 2533, 2016 N.Y. Slip Op 02656.

The lead sentence above is complicated, but not more so than the decision by Justice Sheri S. Roman, which methodically works its way through several complex issues to arrive at a total affirmance of Judge Poulos’s decision from March 2015, which not only upheld the co-parent’s standing to seek visitation but also rejected the birth mother’s attempt to institute a paternity action against the sperm donor for both children. Justice Roman’s opinion refers to the parties as Kelly S. and Farah M., but an article about the decision published in Newsday on April 9 identifies them as Kelly Steagall and Farah Martin.

According to the decision, Kelly and Farah began their relationship around March 2000 and became registered domestic partners in California in January 2004. Shortly afterwards they asked a close friend, Andrew S., to donate sperm so they could have a child together.  Kelly became pregnant and bore their first child, whom Farah legally adopted.  That child is not a subject of this lawsuit.

Kelly and Farah decided to have another child, and Andrew again donated sperm. This time Farah became pregnant, giving birth in March 2007 to Z.S.  Kelly was listed as a parent on the birth certificate and the child’s legal surname is Steagall.

After the California Supreme Court ruled for marriage equality in 2008, Kelly and Farah decided to get married, which they did that August. A few months later the voters approved Proposition 8, ending new same-sex marriages in California until it was declared unconstitutional several years later.  In the meantime, however, the California Supreme Court ruled in 2009 that same-sex marriages performed prior to the passage of Prop 8 remained valid.  Kelly and Farah decided to have a third child and Andrew again donated sperm so that Farah could become pregnant.  Their third child, E.S., was born in April 2009.  Kelly was again listed on the birth certificate as a parent, and E.S. received Kelly’s surname.

In 2012 the family relocated to New York State, but Kelly and Farah soon split up and Kelly moved to Arizona in the summer of 2013. The children remained in New York with Farah.  As diplomatic relations between the women were poor, Kelly filed a visitation petition in the Suffolk County Family Court, seeking visitation with Z.S. and E.S.  She alleged that the women were legally married in California and Kelly was a legal parent of the two children, whom she had helped to raise until the parties split up.

Farah moved to dismiss the case, arguing that Kelly lacked standing under New York law to seek visitation, invoking the old New York precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), under which same-sex co-parents were deemed to be “legal strangers” to their children. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition.  Although Andrew had never sought to establish his paternity, he was a close friend of the women and had formed a loving relationship with the children and they with him.  Farah evidently hoped that if the court declared Andrew their legal father, that would cut off Kelly’s claim, because New York does not recognize that a child can have more than two legal parents at the same time.

Farah argued in opposition to Kelley’s standing that Z.S. was born before the women were married, and that Kelly should not be deemed their parent because the insemination did not follow the prescribed route under either California or New York donor insemination statutes, which specify the involvement of a doctor in performing the insemination and a written consent from the birth mother’s spouse in order to raise a presumption of parental status for the spouse. Both of these children were conceived through insemination at home without the aid of a physician.

LGBT family law has advanced so significantly in both California and New York since the turn of the century that Farah’s arguments clearly lacked merit. Same-sex marriage is legal in both states, and New York’s Marriage Equality Law, enacted in 2011, makes clear that same-sex and different-sex marriages are to be treated the same, a point driven home as a matter of constitutional rights by the U.S. Supreme Court’s 2015 Obergefell decision.

New York courts have several times used the doctrine of “comity” to rule that somebody who is a parent of a child under the law of another state will be recognized as their parent in New York, despite the precedent of the Alison D. case. Under California law, when a registered domestic partner gives birth to a child her partner is presumed to be a legal parent of the child and, of course, when a married woman gives birth to a child in California, her legal spouse is presumptively the child’s parent.  The family court found that both of these presumptions applied in this case, and the Appellate Division agreed.

The court rejected Farah’s argument that failure to comply with the statutory donor insemination procedures of the two states would bar Kelly from parental status, pointing out that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. These laws provide that partners of birth mothers who comply with the statutory requirements will obtain parental status, but don’t explicitly provide that failure to comply will forfeit any claim to parental status. The general rule for recognition of parental status in New York for a child born in a sister state is comity unless there is a strong public policy reason for New York to refuse to recognize the status.  California law clearly provides that a child born to a woman who has a registered domestic partner is also the child of the partner, and similarly, of course, that a child born to a married woman is the child of her spouse, and New York courts have extended comity in such situations in the past.  In this case, since Kelly was listed on both birth certificates and the children were given her surname, it is clear that the parties intended that she be a parent of both children when they were born.

The Appellate Division also upheld Judge Poulos’s decision to dismiss Farah’s paternity petition. Poulos determined that Farah filed the “in an attempt to terminate Kelly S.’s parental rights.”  But this would be inconsistent with the ultimate factual findings in the case.  Wrote Justice Roman, “The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state.  Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013.  Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”

Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppague, N.Y. Farah Martin is represented by Sari M. Friedman of Garden City.  Regina M. Stanton was appointed by the court to represent the interest of the children.  Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.”  Steagall told Newsday, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”

The New York Court of Appeals will hear oral argument on June 2, 2016, in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals gave leave to appeal a ruling by the Buffalo-based Appellate Division, 4th Department, Matter of Barone v. Chapman-Cleland, 129 A.D. 3d 1578, 10 N.Y.S.3d 380 (June 19, 2015), which had matter-of-factly applied the Alison D. precedent to hold that a lesbian co-parent lacked standing to seek custody and visitation with her son.  The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, in Debra H. v. Janice R., 14 N.Y.3d 576, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one appointee by former Republican Governor George Pataki on the bench, an almost complete turnover of membership since Alison D. was last affirmed, so it is highly possible that the court granted leave to appeal with a view to overruling the obsolete precedent.

Nassau County (N.Y.) Family Court Rejects Lesbian Co-Parent Custody Petition

Posted on: July 24th, 2014 by Art Leonard No Comments

Nassau County (NY) Family Court Judge Edmund M. Dane rejected a lesbian co-parent’s joint custody petition on June 30, finding that despite the 2011 passage of New York’s Marriage Equality Law, the state’s child custody laws fail to acknowledge parental claims of a co-parent who was not married to the child’s birth mother when the child was born.  Jann P. v. Jamie P., NYLJ 1202664272007 (published July 23, 2014).

According to Judge Dane’s opinion, the child, named John, was born to Jamie P. in 2011.  Jamie P. and Jann P. were married on January 20, 2012.  The opinion does not specify whether the women were living together when the child was born, or whether the child was conceived through donor insemination by their agreement.  The women’s relationship evidently soured, and they executed a written separation agreement dated August 7, 2013.  The separation agreement described John as “a child of the marriage” and it provided that John would be raised only by Jann and Jamie, referring to both parties as “wife” and apparently providing that Jamie would have residential custody.  Under the agreement, Jann would have visitation rights at her home every Saturday and on alternate Sundays, with holidays being spent together but ultimately split between the parties upon finalization of a divorce.  The separation agreement also provides that “joint custody will be determined at a later date upon further and in depth discussions.”  No divorce petition has been filed, however.

Jann P. filed suit in Family Court on December 9, 2013, seeking joint custody of John.  The petition identifies Jann P. as John’s parent, and identifies Jamie P. as John’s mother.  The petition alleges that joint custody would be in the best interest of John, citing the “mental well being of the child.”  Jamie filed a motion to dismiss the petition, arguing that Jann is not John’s legal parent and, in the absence of extraordinary circumstances that would support terminating Jamie P.’s custody, Jann would not have standing under New York law to seek custody of John.  The attorney appointed to represent John’s interest also opposed the custody petition.

Opposing Jamie’s motion, Jann argued that the court should use equitable estoppel to block Jamie’s argument, pointing to the separation agreement under which both women were identified as parents and the reality that Jann acted as a parent to John while the women were living together and married.  Equitable estoppel is a legal doctrine that courts sometimes use to block a party from making a legal argument that would be inconsistent with their past actions.  In this case, Jann argued that Jamie had conceded Jann’s parental status by signing the separation agreement and should not be allowed to take a contrary position in court.

“This case presents a timely and important issue,” wrote Judge Dane, “the likes of which the courts and legislature of this State will likely be addressing for some time to come, namely, are there circumstances under which a spouse in a same-gender marriage has standing to seek custody of a child who is not biologically related to the petitioning spouse, but was considered by both spouses to be a child of the marriage?”  Dane observed that passage of the Marriage Equality Act in 2011 “took a significant step in redefining long-standing concepts of what constitutes a family under the laws of this State,” but that “it is apparent that this process of evolution is incomplete.”

Specifically, Dane referred to a New York Court of Appeals decision from 2010, Debra H. v. Janice R., 14 N.Y.3d 576, in which the court rejected the use of equitable estoppel by a same-sex co-parent of a child’s birth mother seeking to establish parental rights.  In that case, the women had been in a Vermont civil union when the child was born, and the court concluded that it could find standing based on the Vermont Civil Union Act, which established the presumption that a child born to a married woman was the legal child of the women’s spouse.  Also in that case, the Court of Appeals reaffirmed its terrible old decision of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which has continued to haunt LGBT family law in New York State with its refusal to readjust the interpretation of antiquated family law statutes in light of modern family realities.  Relying on these cases, both of which pre-date the Marriage Equality Law, Dane found that Jann’s equitable estoppel argument had to be rejected, and he observed that a traditional legal presumption concerning a child born to a married woman being the legal child of her spouse was a presumption of fact concerning biological parenthood that could not logically be entertained in the case of a same-sex couple.  Such a presumption would not apply in this case anyway, since John was born before the women were married.

Alternatively, Jann pointed to New York cases allowing a man who married a woman who already had children to seek to establish parental rights based on the relationship he developed with the children, but Judge Dane observed that New York law does not provide a procedure for establishing maternity, just paternity, and that the principal case cited by Jann, Jean Maby H. v. Joseph H., 246 App. Div. 2d 282 (2nd Dep’t 1998), was of questionable authority after the Court of Appeals ruling in Debra H.

The problem as Judge Dane identified it was that New York’s existing legal framework provides for paternity actions but not maternity actions.  “Accordingly,” he wrote, “it stands to reason that if the petitioner were a man who held himself out as John’s father for a period of time sufficient to establish a paternal bond with John, he would have standing to file a petition seeking a declaration of paternity under article 5 of the Family Court Act and then, if successful in the paternity proceeding, would have standing to seek custody or visitation with the child.  Unlike a man in the same position, the petitioner cannot employ a paternity proceeding as a means of establishing standing to seek custody of John because she cannot allege that she is John’s father and the law does not provide for a proceeding to declare maternity.”

Dane also dismissed as irrelevant a New York statute concerning donor insemination within marriage, under which the husband can be deemed the legitimate parent of a child conceived through donor insemination of his wife with his consent.  Dane pointed out that there was no information in the court record about whether John was conceived through donor insemination, and furthermore “he was conceived and born prior to the marriage.”

Dane suggested that the legislature should address this issue, perhaps by amending the Family Court Act to provide same-sex co-parents with the same legal remedies that a man in the same situation would have.  “The inequity of the imbalance of remedies available to the petitioner is highlighted in this case,” wrote Dane, “by the parties’ separation agreement, which clearly indicates that the parties viewed the petitioner as John’s parent, contemplated the possibility of the parties sharing custody of John, and gave the petitioner specific visitation rights. Until such time as the legislature addresses the issue, however, the court agrees with the attorney for the child’s position that the petitioner may not use equitable estoppel as a ground to establishing standing to seek custody.”

Judge Dane pointed out that separation agreements “are not enforceable in Family Court,” but that “they may be enforceable in a matrimonial action,” so it’s possible that Jann would get somewhere in her quest for custody by filing a divorce petition.  He mentioned that Jann argued that denying her standing in this case violated her constitutional right to equal protection, but then never addressed that argument anywhere in his opinion.  Certainly the one-sided statutory framework suggests that stereotypes about women and men concerning parental roles were at play when the legislature set up the statutory scheme, which should heightened scrutiny in the context of an equal protection challenge, but Dane evidently considered Jann’s lack of standing to preclude any constitutional argument.

In its article reporting on the case on July 24, the New York Law Journal quoted Jann’s attorney, William Scheeckutz, Jr., as saying that the women were a couple when John was born, that no divorce proceedings are pending, and that since the court ruled, John had been removed from Jamie and put into foster care because of a neglect petition.  Sheeckutz said that he had filed a notice of appeal from Judge Dane’s ruling, and that Jann was also considering attempting to intervene in the neglect proceeding.

Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.

 

 

Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.

Florida Supreme Court Rules 4-3 in Favor of Lesbian Co-Parent Egg Donor’s Right to Seek Custody

Posted on: November 7th, 2013 by Art Leonard No Comments

Ruling on a question of first impression for Florida, the state’s Supreme Court split 4-3, finding that a lesbian co-parent who had donated an egg that was fertilized in vitro and implanted in her same-sex partner, could seek custody of the resulting child whom she had parented for the first two years of the child’s life before the couple’s relationship ended.  The court approved a ruling by the 5th District Court of Appeal that a Florida statute that would by its terms block this result would be unconstitutional as applied to this situation, although the court disagreed with the 5th District’s conclusion that the statute didn’t even apply to the case because the co-parent did not intend to “give away” her egg as a “donor.”  The dissent argued that the constitutional issues were not properly before the court and that the co-parent had waived her rights by signing a form consent agreement at the time the in vitro insemination procedure was performed.

The case, D.M.T. v. T.M.H., 2013 Fla. LEXIS 2422, 2013 WL 5942278 (Nov. 7, 2013), achieved a fair degree of notoriety, as the birth mother absconded with the child to Australia and had to be tracked down by detectives in order to serve her with the co-parent’s complaint to initiate the lawsuit.

According to the opinion for the court by Justice Barbara J. Pariente, the parties were “involved in a committed relationship from 1995 until 2006,” living together, acquiring real estate together, and maintaining joint financial accounts.  They decided to have a baby, and after determining that D.M.T. could not produce an egg, they resorted to in vitro fertilization, using an egg harvested from T.M.H. to inseminate from a sperm donor, to be gestated by D.M.T.  They raised their daughter together for two years until the relationship broke down and they separated in May 2006, after which the child lived with D.M.T. under a time-sharing agreement with T.M.H.  After the relationship of the women deteriorated further, D.M.T. disappeared with the child, and was subsequently traced by detectives to Australia.

T.M.H., described by the court as “the biological mother,” filed a petition to establish her parental rights and seek custody.  D.M.T., described as “the birth mother,” moved for summary judgment, relying on a Florida statute that provides that an egg or sperm donor relinquishes all parental rights, “other than the commissioning couple or a father who has executed a preplanned adoption agreement.”  “Commissioning couple” is defined as the intended mother and father of a child.”  The trial court agreed with D.M.T. that the statute compelled granting her summary judgment, but commented, “I do not agree with the current state of the law, but I must uphold it. And, if you appeal this, I hope I’m wrong.”

T.M.H. appealed, and the 5th District Court of Appeal reversed, finding first that the statute did not even apply, because the court did not consider T.M.H. to be a “donor.”  Finding that the parties had intended to raise the child together, the court of appeal concluded that T.M.H. was not “giving away” her egg.  And, alternatively, if the statute were to apply, the court of appeal ruled that this would violate T.M.H.’s constitutional rights, as the biological and intended parent of the child.

This time D.M.T. appealed.  The Florida Supreme Court majority disagreed with the 5th District’s holding that T.M.H. was not a “donor,” but otherwise affirmed the court’s ruling on constitutional grounds.  The court found that the right to procreate is a “fundamental right” under the Florida and U.S. Constitutions.  “Therefore,” wrote Justice Pariente, “the burden falls on the birth mother to demonstrate that application of the assisted reproductive technology statute to deprive the biological mother of her fundamental right to be a parent furthers a compelling governmental interest through the least intrusive means.  This showing has not been made.”

The court recognized that the statute’s purpose was to protect “couples seeking to use assisted reproductive technology to conceive a child from parental rights claims brought by typical third-party providers of the genetic material used in assisted reproductive technology, as well as the State’s corresponding interest in furthering that objective.  This case, however, does not implicate those concerns.  Quite simply, based on the factual situation before us, we do not discern even a legitimate State interest in applying [the statute] to deny T.M.H. her right to be a parent to our daughter.”  The court emphasized that T.M.H.’s rights in this case did not turn solely on her status as a biological mother, but depended also on the parental role she assumed upon the birth of her daughter, thus distinguishing this from a case where an egg or sperm donor who does not form a relationship with a child suddenly surfaces years later trying to assert parental status.

The court also ruled on an alternative argument of equal protection.  “Sexual orientation has not been determined to constitute a protected class and therefore sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment of homosexuals,” wrote Pariente,” explaining why the court would apply “a rational basis analysis” to T.M.H.’s equality claim.  “The specific question we confront is whether the classification between heterosexual and same-sex couples drawn by the [statute] bears some rational relationship to a legitimate state purpose.”  D.M.T. relied in part on the Florida Marriage Amendment, which forbids same-sex couples from marrying or having their marriage recognized, to support her argument against T.M.H.’s claim, but the court held that the amendment was irrelevant, since the “commissioning couple” definition in the statute did not require that the intended father and mother be married to each other, unlike a companion statute on gestational surrogacy which limited that procedure to use on behalf of married couples.  The court also rejected D.M.T.’s claim that “recognizing T.M.H.’s parental rights in this case would undermine the State interest in providing certainty to couples using assisted reproductive technology to become parents because it would increase litigation regarding the intentions of individuals providing genetic material.”  The court pointed out that the statute clearly contemplates litigation about whether an unmarried different-sex couple might be considered a “commissioning couple” under the statute, which would require a factual determination of intent.

“We conclude,” wrote Pariente, “that the State does not have a legitimate interest in precluding same-sex couples from being given the same opportunity as heterosexual couples to demonstrate that intent.  Consistent with equal protection, a same-sex couple must be afforded the equivalent chance as a heterosexual couple to establish their intentions in suing assisted reproductive technology to conceive a child.”  Additionally, the court noted a ruling by the 3rd District Court of Appeal in Adoption of X.X.G. which had declared unconstitutional the state’s statutory ban “against a homosexual adopting  child” as “lacking a rational basis,” mentioning with apparent agreement that court’s finding “that gay people and heterosexuals make equally good parents.”  Then-Governor Charlie Crist had decided not to appeal the X.X.G. decision and instead to comply with the court’s order, so the Supreme Court had never issued a definitive ruling on the constitutionality of the statute.  This pronouncement by a majority of the court appears to approve of that ruling, at least by implication.

The court rejected D.M.T.’s argument that the standard consent form that T.M.H. signed at the clinic for the in vitro procedure would serve to waive her rights, asserting that “courts that have considered similar standard informed consents used in reproductive technology have held that waiver provisions like the one referenced by the Fifth District are inapplicable in circumstances like those in this case.  This is because it is uncontested that the biological mother was not an anonymous donor, but rather, that the parties were in a committed relationship where reproductive technology was used – with one woman providing her egg and the other partner bearing the child – so that both women became the child’s parents. . .   Accordingly, the informed consent form signed by the biological mother has nothing to do with a release of parental rights where she was not an anonymous donor, but rather, was a full-fledged partner in the conception and raising of the child.”

Having determined that T.M.H. is a legal parent of the child, the Supreme Court sent the case back to the trial court “to determine, based on the best interests of the child, issues such as parental time-sharing and child support.”

The dissenting opinion, written by Chief Justice Ricky Polston, contested just about every point of the majority decision, arguing that the constitutional issues had not been asserted at the trial level and thus were not preserved for consideration on appeal, that D.M.T. contested T.M.H.’s allegation that the women had intended to raise the child together, and that the statute clearly applied to block T.M.H.’s claim.  The political line-up of the justices is interesting.  Of the four in the majority, two were appointed by Democratic Governor Lawton Chiles and two by Republican Governer Charlie Crist; of the three dissenters, one was appointed by Chiles and two by Crist.

Many amicus briefs were filed with court, mainly in support of T.M.H., including briefs from the ACLU LGBT Rights Project and the ACLU of Florida, Lambda Legal, and the National Center for Lesbian Rights.  Michael B. Jones of Orlando, Florida, represented T.M.H.   Christopher V. Carlyle and Shannon McLin Carlyle of The Villages, Florida, and Robert A. Segal of Melbourne, Florida, represented D.M.T.

Presumed Parenthood for California Domestic Partners – Did This Issue Have to Be Litigated?

Posted on: May 18th, 2013 by Art Leonard No Comments

Under longstanding legal principles in most American jurisdictions, and definitely in California, when a married woman has a child, her spouse is presumed to be the legal parent of the child.  When California first established legally-recognized domestic partnerships for same-sex couples, this status brought with it only a limited menu of rights and responsibilities.  However, through a few rounds of amendments, the domestic partnership status was expanded to come close to matching the legal rights and responsibilities of spouses.  The last such round of amendments, taking effect on January 1, 2005, provides that “the rights and obligations of registered domestic partners with respect toa  child of either of them shall be the same as those of spouses.”

On October 19, 2006, C.P., a party to a domestic partnership with D.F., filed a petition in San Bernardino County Superior Court seeking a dissolution of the domestic partnership.  C.P. is the biological mother of their child, H., who was born in 2004, shortly after the women registered their domestic partnership.  In the context of the dissolution proceeding, D.F. sought joint custody of H.  C.P. objected to this, asserting that as the biological mother she was entitled to sole legal custody, and that under California law a child could have only one mother.  The trial judge overruled this objection, and awarded joint legal custody and physical custody, ordering as well that D.F. make monthly child support payments to C.P.  C.P. appealed.

The 4th District Court of Appeal ruled on May 16 that C.P.’s argument was inconsistent with California law.  Indeed, since 2005, in Elisa B. v. Superior Court, 37 Cal.4th 108, the California Supreme Court has adopted the view that a child can have two mothers, and that in a scenario similar to that of the C.P.-D.F. situation, California law should be interpreted to recognize presumptive parental statute for a lesbian co-parent of a child conceived within the partnership of the two women and jointly raised by them until they decided to end their relationship.

So one wonders why C.P. was litigating this question of established law?  The answer, apparent from the face of the opinion, see 2013 Westlaw 2099156, was that C.P. was representing herself in appealing the trial judge’s order to the Court of Appeal.  Presumably a competent lawyer would have figured out that the chances of winning this case on appeal, in light of the findings and reasoning of Superior Court Judge John M. Pacheco, were nil.  Indeed, the result is so uncontroversial that the court has designated its decision as unpublished, since it is virtually superfluous. 

So, it’s time to get the word out in California, to the lay public as well as the practicing bar, that when it comes to issues of parental status and rights, registered domestic partners have the same rights as legal spouses.  If that wasn’t totally clear prior to the tumultuous events of 2008/9 — when the California Supreme Court ruled that same-sex couples have  a right to marry under the state constitution, the voters passed Proposition 8 taking that right away, and then the Supreme Court ruled in 2009 that California constitutional law after enactment of Prop 8 required that domestic partnerships carry all the same rights as marriage — it is clear now.

Which raises an interesting question about the opinion by Acting Presiding Justice McKinster.  Why not just declare that D.F.’s right to seek custody is presumptively established by her domestic partnership status at the time the child was born?  Instead, the court goes through the analysis of the Elisa B. case to independently establish D.F.’s parental rights apart from any presumption.  In a footnote, the court suggests that D.F. did not rely on the presumptive parentage doctrine to see her parental rights affirmed by the court.  But these short-cuts and presumptions exist in support of judicial economy, so it would undoubtedly have been better for the court to apply the presumption without engaging in the extended factual analysis, which sends the wrong signal to trial courts in the state. 

Perhaps this will all be rendered superfluous when the U.S. Supreme Court ruled in Hollingsworth v. Perry next month.  One can hope.

Pregnant Lesbian Will Get Jury Trial Against Catholic School

Posted on: February 7th, 2013 by Art Leonard No Comments

Senior U.S. District Judge Arthur Spiegel (Southern District of Ohio) ruled on January 30 that Christa Dias, who was fired as a computer technology coordinator from two schools of the Roman Catholic Archdiocese of Cincinnati after she told her principal at one of the schools that she was pregnant, is entitled to a jury trial of her pregnancy discrimination complaint under Title VII of the Civil Rights Act of 1964, but not of her breach of contract claim.   Unbeknownst to the schools, Dias was in a relationship with a same-sex partner while employed there.

Judge Spiegel relates that when Dias became pregnant, she told the principal at one of the schools, who made inquiries of higher authorities and then told Dias that she would probably lose her job because she was pregnant and unmarried.  This would be a violation of the “morals” provision of her employment contract, which required her to comport herself in compliance with Roman Catholic teachings, which disapprove of premarital sex.  Dias responded that she did not become pregnant from sex, but rather from “artificial insemination.”  The R.C. Church doesn’t approve of that either, so she was dismissed from her jobs. 

She sued under Title VII, which forbids sex discrimination and provides that the ban on sex discrimination also includes discrimination because of pregnancy.  She also argued that the employer had terminated her contract without good cause.  In defense, the employer argued that it was entitled to the ministerial exemption as a religious institution, and that Dias could not bring suit under her contract because she had violated the morals clause, which provided them with a valid reason for her discharge. 

In an earlier ruling, on March 29, 2012, Judge Spiegel rejected the “ministerial exemption” defense, finding that it only extends to employees who are hired to fulfill religious functions.  There was no indication that somebody hired as a computer technology coordinator was performing such functions.  Indeed, Judge Spiegel found that Dias was not a minister, was not hired to teach religion, and as a non-Catholic was not even permitted to teach religion in a Catholic school.  Judge Spiegel also found in that earlier ruling that there seemed to be a lack of “meeting of the minds” about whether the “morals clause” of the contract would be violated by an unmarried female employee becoming pregnant through artificial insemination, so there was a “question of fact as to whether Plaintiff knew she was barred from such action.”

After Judge Spiegel issued the earlier ruling, discovery got under way and the further fact emerged that Dias was living in a homosexual relationship with another woman while employed by the Archdiocese, another violation of Catholic teaching, which she had kept secret from her employer.  The employer argued that new facts emerging in discovery also bolstered its contention that the ministerial exemption applies to this case.  Both parties moved for summary judgment.

The Archdiocese lost on the argument that the ministerial exemption would apply.  Judge Spiegel rejected the argument that new facts emerging during discovery would change his conclusion. The Archdiocese argued that all teachers were “role models” and thus “ministers” in this context, but Judge Spiegel was unshaken from his prior conclusion that because Dias was “not permitted to teach Catholic doctrine, she cannot be considered a ‘minister’ of the Catholic faith.”  He also rejected an argument that the Archdiocese was not a proper defendant because the schools hire and fire faculty autonomously, pointing out that the Archdiocese sets the overall employment policies for its schools and maintains centralized control of management and labor relations.

As to the pregnancy discrimination issue, it is clear on its face that the employer has a policy of not employing pregnant women who are unmarried, which looks like a facial violation of Title VII, although Spiegel was unwilling to accept Dias’s contention that terminating an employee for this reason is automatically a violation.  On the other hand, Dias did agree to an employment contract with a morals clause, and the Archdiocese argues that a clear violation of the morals clause gives it a legitimate, non-discriminatory reason for discharge.  “The morals clause in this case lacks specificity such that only an evaluation of the decision-makers’ testimony can show whether their initial reason for terminating Plaintiff was simply enforcement of a policy against premarital sex,” Judge Spiegel wrote.  “This in the Court’s view is a factual determination for a jury: to answer why Defendant really terminated Plaintiff.” 

Spiegel then asserted that the defendant would be guilty of sex-discrimination if its policy against premarital sex was not evenhandedly administered.  The plaintiff contends that the morals clause is used to dismiss women who become pregnant but not men who have premarital sex.  So at trial, it would behoove the Archdiocese to come up with examples of single male employees who were dismissed for getting their girlfriends pregnant, or married male employees dismissed upon discovery that they were having extra-marital affairs. 

“This case offers the further twist of a second proffered reason for Plaintiff’s termination,” wrote Spiegel.  “After Plaintiff informed Defendants she was pregnant through the means of artificial insemination, they responded that such means of becoming pregnant was also justification for her termination.”  Although 6th Circuit caselaw suggests that the way a person becomes pregnant may be relevant in the context of evaluating an employer’s policy against premarital sex, Judge Spiegel said that the more immediate issue was, again, whether a policy against unmarried employees using artifical insemination was applied without regard to sex.  He found that “the Plaintiff has raised a genuine issue of material fact as to whether Defendant has enforced its policy as to men.”  The Archdiocese maintains that it is consistent on this, but another fact emerged in discovery: “a former male employee of a parish within the Archdiocese, who testified he engaged in artificial insemination without being fired.”  So there is a jury question about consistency of the policy.

Because the Archdiocese did not fire Dias due to her homosexual relationship, something of which they were unaware until it became known during discovery in this case, that is not an issue in the Title VII claim.  However, Judge Spiegel found that it was an issue in the breach of contract claim.   He pointed out that Dias had admitted in discovery “that she kept such fact secret from Defendants as she knew Defendants would view her relationship as a violation of the morals clause.  Under such circumstances, the Court finds Plaintiff, with ‘unclean hands,’ cannot invoke a cause of action based on a contract she knew she was breaching.”  Finding that the contract issue was distinct from the Title VII issue, Spiegel granted summary judgment against Dias on her breach of contract claim, but said that this “in no way absolves Defendants of any responsibility to conform to the requirements of law against pregnancy discrimination.”

Finding that summary judgment on the Title VII claim was inappropriate due to the remaining factual issues in dispute, Judge Spiegel said that the scheduled pretrial conference will be held on February 27 and the trial will begin on or about March 19.