New York Law School

Art Leonard Observations

Posts Tagged ‘equitable estoppel’

Second N.Y. Appellate Division Court Reaffirms Parental Rights of Married Lesbians

Posted on: February 21st, 2018 by Art Leonard No Comments

Following a precedent set on January 25 by the Albany-based N.Y. 3rd Department Appellate Division, the Brooklyn-based N.Y. 2nd Department Appellate Division issued a unanimous decision on February 21 ordering the dismissal of a sperm donor’s attempt to establish parentage and get legal visitation with a child born to a married lesbian couple.

As in the earlier case, Christopher YY v. Jessica ZZ & Nichole ZZ, 2018 WL 541768, 2018 N.Y. App. Div. LEXIS 489 (3rd Dept.), the sperm donor in this case, Joseph O. v. Danielle B. & Joynell B., 2018 WL 988920 (2nd Dept.), was not seeking custody but wanted legal acknowledgment of his biological parentage of the child and the legal right to visitation with the child.  Following the earlier ruling, and overruling Orange County Family Court Judge Victoria B. Campbell, the 2nd Department panel found that the principal of “equitable estoppel” barred Joseph O.’s lawsuit, even though the parties did not comply with a provision of the Domestic Relations Law, Section 73, which that would have created an “irrebuttable presumption” that the married couple, Danielle V. and Joynell B., are the only legal parents of the child.

The Domestic Relations Law provision was adopted years ago in response to the growing practice of donor insemination, for the purpose of assuring that when a married different-sex couple has a child using donated sperm, there will be no question that the mother’s husband is the parent of the child, who will be considered the legitimate offspring of their marriage. It provides that when the procedure is done by “a person duly authorized to practice medicine,” there is an “irrebuttable presumption of legitimacy” of the child, barring the sperm donor from any attempt to establish legal parentage or seek custody or visitation.

Unfortunately, the legislature has not revised the statute to reflect the existence of same-sex marriages, and many lesbian couples using donor insemination to conceive children don’t involve doctors in the procedure, which can be easily accomplished by the couple at home without professional assistance. In this case, Danielle and Joynell married in Connecticut in 2009 and used the Internet to find Joseph O., a sperm donor who was willing to agree in writing that he would have no parental rights or responsibilities.  They had a three-party written agreement to that effect.

The child was born in April 2012. According to the mothers, they had only sporadic contact with Joseph, who saw the child a few times each year since her birth, including some birthdays, but who was not treated as a father and not recognized as such by the child.  The two women were identified as the child’s parents on her birth certificate.

Claiming that his main purpose was to assure that he would have a continued right to visit with the child, Joseph filed suit in Orange County Family Court in September 2015, naming Danielle, the birth mother, as respondent. This lawsuit was dismissed on the ground that Joynelle should have been named as a “necessary” party, since she is also a legal parent of the child.  Joseph filed a new lawsuit in June 2016, naming both mothers as respondents, and seeking two things: legal visitation rights, and a declaration that he is the father of the child.  Joseph claimed that he had an established relationship with the child and that it would be in the child’s best interest for him to have visitation rights.

Danielle and Joynell moved to dismiss the case, claiming that there is a presumption of legitimacy of the child, both under New York common (non-statutory) law and under the Domestic Relations Law provision governing donor insemination. They also raise the argument of “equitable estoppel,” claiming that Joseph had no meaningful relationship with the child and, in any event, had waited too long to assert parental rights – more than three years since the child’s birth.

Family Court Judge Campbell appointed an attorney to represent the child’s interest, Kelley M. Enderley of Poughkeepsie, who sided with the mothers, affirming that “the child recognized only the respondents as her parents.” In an affidavit they filed in support of their motion to dismiss Joseph’s case, the mothers emphasized the limited contact they and their daughter had with Joseph, that he had seen the child only “sporadically,” and that the child did not recognize him as “anything other than an acquaintance of the family.”

Nonetheless, Judge Campbell denied their motion to dismiss, finding based on Joseph’s allegations of biological parenthood that the burden was on the mothers to show it was not in the child’s best interest to have a paternity test ordered to confirm that Joseph is her biological father or to have an “order of filiation” establishing his legal parental status. According to Judge Campbell, by allowing Joseph to have contact with the child over the time since her birth, the mothers had lost entitlement to the “presumption of legitimacy” of the child, and the question of equitable estoppel required a trial.

The Appellate Division found these rulings to be erroneous. Although the parties had not complied with the donor insemination statute, the court followed the earlier 3rd Department ruling holding that the statute was “not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”  More importantly, the court reaffirmed the emerging consensus among New York courts that married lesbian couples who have children through donor insemination are entitled to enjoy the presumption – codified elsewhere in the state’s Domestic Relations Law and in the Family Court Act – that the child is the legitimate child of the birth mother and her wife.

Although that presumption is not irrebuttable, an attempt by the sperm donor to rebut it may be blocked under the doctrine of equitable estoppel to “preserve that status of legitimacy for the child” under the circumstances presented in this case, in order to “protect a child’s established relationship with another who has assumed the parental role” – that is, Joynell, the wife of the child’s birth mother.

Here, all the facts came together to support dismissing Joseph’s case. He agreed when he donated his sperm that he would not seek any parental rights, he was not named on the birth certificate, and although he was certainly aware of the child’s birth, he did nothing to assert his legal claim for more than three years.  “During that time,” wrote the court, “the child has lived with and been cared for exclusively by the respondents, each of whom has developed a loving parental relationship with her.”

By contrast, although Joseph has had occasional contact, he can’t claim to have developed a parental relationship with the child, and he “acknowledges that he does not actually seek a parental role,” he is just interested in making sure that he has a legal right to continue seeing the child, in case her mothers decide to deny him access.

“Under the particular circumstances presented here,” wrote the court, “it would be unjust and inequitable to disrupt the child’s close parental relationship with each of the respondents and permit the petitioner to take a parental role when he has knowingly acquiesced in the development of a close relationship between the child and another parent figure.”

Thus, the Family Court should have granted the mothers’ motion to dismiss both of Joseph’s requests – for an order of filiation and for visitation rights – since “it has long been the rule in this State that, absent extraordinary circumstances, only parents have the right to seek custody or visitation of a minor child,” and Joseph is not a legal parent. This last quotation is from the state’s highest court, the Court of Appeals, in its important ruling, Brooke B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), recognizing the parental rights of same-sex couples.

The Appellate Division Justices on the panel that decided this case are Reinaldo E. Rivera, L. Priscilla Hall, Betsy Barros, and Valerie Brathwaite Nelson.

The mothers are represented by The Kurland Group (Yetta G. Kurland and Erica T. Kagan) and the LGBT Bar Association of Greater New York through its Legal Director, Brett Figlewski.  The American Academy of Assisted Reproductive Technology Attorneys filed an amicus brief written by attorneys from Seyfarth Shaw LLP and Rumbold & Seidelman LLP.  Joseph O. is represented by Paul N. Weber of Cornwall, New York.


N.Y. 4th Department Rejects Custody & Visitation Petition From Same-Sex Co-Parent

Posted on: June 23rd, 2015 by Art Leonard No Comments

Relying on a quarter-century old N.Y. Court of Appeals precedent under which a same-sex co-parent is considered a “legal stranger” to the child she was raising with her former partner, the Appellate Division, 4th Department has affirmed a decision by Chautauqua County Family Court Judge Judith S. Claire to dismiss a petition for custody and visitation filed by Brooke S. Barone.  The ruling in Barone v. Chapman, 2015 N.Y. App. Div. LEIS 5226, 2015 WL 3797129, was issued on June 19, 2015.

Brooke Barone and Elizabeth Chapman were same-sex partners and Barone had been co-parent of Chapman’s son.  They did not marry and Barone never adopted the child.  After they ceased to be partners Barone filed this petition seeking to have the Family Court determine custody and visitation issues.  The court appointed R. Thomas Rankin, an attorney in Jamestown, to represent the interest of the child.  Barone represented herself in the proceeding.

Chapman filed a motion to dismiss the petition, arguing that Barone did not have standing to seek custody or visitation because she had no legal relationship to the child.  Rankin opposed the motion on behalf of the child, arguing that the child’s best interests should be “paramount” over the legal formalities, and that “the standing accorded to parents should extend to those who have a recognized and operative parent-child relationship, regardless of their sexual orientation.”  He further argued that the court should use the doctrine of equitable estoppel, arguing that a legal parent who has fostered and encouraged her unmarried partner to form a relationship with her child should be forbidden by the court to deny the reality of that relationship by raising an objection to standing.  Judge Claire, finding herself bound by New York precedents, dismissed the petition.

The Appellate Division was equally dismissive of Rankin’s argument.  “Those contentions are without merit,” it wrote, quoting from an Appellate Division ruling that “the Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some matter of control over the child with the parent’s consent.”  The court noted earlier cases involving same-sex couples, in which the Court of Appeals had stated that “parentage under New York law derives from biology or adoption” and the Court of Appeals’ 1991 ruling, Alison D. v. Virginia M., had created a “bright-line test” under which a person who was neither the biological or adoptive parent of a child is considered a legal stranger without standing to seeking custody or visitation.  A few courts have departed from that more recently in the context of married same-sex couples, finding that when a married woman bears a child, her spouse should be presumed to be the child’s legal parent, but the Court of Appeals hasn’t yet ruled on such a case.

Concluded the Appellate Division panel, “We reiterate that, as the Court of Appeals unequivocally stated, ‘any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent.’  Finally, we note that petitioner ‘failed to sufficiently allege any extraordinary circumstances to establish her standing to seek custody’ as a nonbiological, nonadoptive parent.”  The Court of Appeals has recognized that such special circumstances might justify bending the rules, but in the Alison D. case and subsequent cases relying upon it, the court have found that same-sex couples raising a child together do not automatically qualify under the “extraordinary circumstances” rule.

After Alison D. was decided, the Court of Appeals in a late case construed the Adoption Law to allow same-sex partners to adopt child they were co-parenting without terminating the parental rights of the child’s legal parent, providing a clear path for same-sex partners to avoid this result.  However, in the absence of such an adoption, the courts have adhered to the “legal stranger” rule, and the legislature has yet to modify the statutes on parental standing to take account of non-traditional families in New York.

New York Court Refuses to Apply Parental Presumption for Married Same-Sex Couple

Posted on: November 14th, 2014 by Art Leonard No Comments

The standard rule in family law is that the legal spouse of a woman who gives birth to a child is presumed to be the child’s legal parent.  Of course, the traditional statement of the rule is that when a married woman gives birth, her husband is presumed to be the child’s father.  The original purpose of this doctrine was to protect the legal status of a child, who would be considered “illegitimate” if its biological parents were not married to each other.  Some states treat that presumption as incontestable, while others, including New York, say that the presumption can be defeated by evidence showing that a different man is the child’s biological father.  A New York court, faced with a paternity proceeding brought by a man who had an affair with a woman who was married to another woman, recently decided that the man had a right to attempt to prove that he is the biological father and seek a paternity order, rejecting the idea that the traditional presumption should play any role in this case.

The facts of Q.M. v. B.C. and J.S., P-13761-13, decided on October 21, 2014, and reported in the New York Law Journal on November 13, are unusual.  Ms. C. and Ms. S. became acquainted when Ms. S was just 16.  They began living together the following year, and were married in Dover, New Hampshire, on November 22, 2010.  Their marriage has not been smooth, however, including several separations, and a divorce proceeding is under way.  During one of their separations, during parts of 2011 and 2012, Ms. C began a relationship with Mr. Q.M..  Wrote Justice Joan Kohout (N.Y. Supreme Court, Monroe County), “Ms. C. admitted that she became pregnant with J.C. as a result of sexual relations with Mr. M. and that she was not sexually involved with any other man at the time she became pregnant.”  That is, Ms. C. admits that Mr. M. is the biological father of her child, who was not conceived through donor insemination.  Indeed, after the child was born, Ms. C allowed Mr. M. two visits, even though their intimate relationship had ended when she got back together with her wife.  However, shortly after these visits, Mr. M. filed this paternity action, and Ms. C. cut off his access to the child.  Mr. M. sought, among other things, genetic testing to confirm that J.C. is his daughter.

Ms. C. was pregnant when she got back together with Ms. S., who was at the hospital when the child was born, “selected the child’s name and signed her birth certificate.  Both Ms. C. and Ms. S. testified that Ms. S. has a close relationship with J.C.,” wrote the judge, “and that since their separation, Ms. C. has permitted Ms. S. to have contact with the child.”  The women have been separated since April 2014, and their divorce action was filed in July.  Nonetheless, Ms. S. desires to be treated as a mother of J.C., and her estranged spouse, B.C., supports her position on this.

“Ms. C. takes the position that Mr. M. should be excluded from J.C.’s life,” wrote the judge.  “Although she has never denied that he is J.C.’s biological father, she argues that her wife is the lawful and proper parent of J.C.  She testified that she wants her ‘wife to have rights to my daughter as she has been.’  Ms. C. acknowledges that Ms. S. never adopted J.C. and that the couple separated in April 2014.”

Ms. C. and Ms. S. want to take advantage of the parental presumption, arguing that there was no need for Ms. S. to adopt J.C. in order to be considered her parent, because the women were married when J.C. was born.  They relied on New York’s Marriage Equality Law, which provides that same-sex and different-sex marriages are to be treated the same for all purposes of law.    Alternatively, they relied on the legal doctrine of “equitable estoppel,” arguing that under these circumstances Q.M. should be barred from asserting parental rights.

Justice Kohout rejected both arguments.

“With the advent of same-sex marriage, the role of the non-biological spouse, especially in a marriage of two women, requires a re-examination of the traditional analysis of the presumption of legitimacy,” wrote the judge.  “Most of the cases to date concerning same-sex couples involve children born of artificial insemination where female spouses have planned together to raise the child.  Recently, in the well-crafted decision of Wendy G-M v. Erin G-M the supreme court held that in the context of a divorce of a same-sex couple, the non-biological wife was the legal parent of a child born of artificial insemination during the marriage.”  The judge pointed out that such cases usually involve an anonymous sperm donor and “there is no legal father,” so “the statute may easily be applied in a gender neutral manner.”

But in this case, she found, such application of the statutory presumption did not make sense because, as a matter of biology, “there is no dispute that Ms. S. is not, and could not possibly be, the second parent of this child.”  Responding to Ms. C.’s argument that the Marriage Equality Act requires the parental presumption rule to be applied in a gender neutral manner, the judge said that “the Marriage Equality Act does not require the court to ignore the obvious biological differences between husbands and wives.”  Referring to the state in question, she wrote that it could be “easily applied to same-sex female married couples, but not to same-sex male couples, neither of whom are able to bear a child.  In the same vein, neither spouse in a same-sex female couple can father a child.  Thus, while the language” of the Marriage Equality Law “requires same-sex married couples to be treated the same as all other married couples, it does not preclude differentiation based on essential biology.”

The judge also noted that New York’s highest court, the Court of Appeals, has “repeatedly declined to expand the traditional definition of a parent beyond biological or birth parents and adoptive parents,” and has “rejected arguments that non-adoptive or non-biological third parties, such as Ms. S., should be grated parental status based on a claim of a close relationship with the child.”  In Justice Kohout’s view, Ms. S. has, at best, the status of a step-parent.  While that might mean, under appropriate circumstances, she would be awarded visitation rights with J.C., she could not seek custody in preference to the child’s biological parents, Q.M. and B.C.  The fact that she was married to B.C. when the child was born “does not change her status.”

Justice Kohout found that the alternative legal theory of equitable estoppel provided no help to the mothers in this case.  Mr. M. has never denied being the biological father of J.C., sought out contact shortly after the child’s birth, and filed a paternity action promptly, seeking to establish his legal ties.  Equitable estoppel might be used, for example, to reject a paternity claim from a man who had agreed to donate sperm under the condition that he would not assert parental rights, but could not be used on these facts to prevent Mr. M. from asserting a paternity claim.

Justice Kohout wrote, “Since Ms. S. never adopted J.C. and is not a biological parent, she does not fit within New York’s definition of parent.  Thus, Ms. S. is not entitled to court ordered custody or visitation with J.C., and any contact she has with J.C. is entirely by voluntary arrangement with Ms. C.  Of course, there is nothing to prevent Ms. C. from continuing to permit Ms. S. to have a relationship with J.C., as suggested by the attorney for the child [appointed by the court], especially if she believes it to be consistent with her daughter’s best interest.”

The problem, however, is that Mr. M. will have the status of a legal parent who can seek court-ordered custody and visitation, as against Ms. S., who will have no such rights.  If Ms. C were to die or become incapacitated from taking care of J.C., Mr. M. would hold all the cards in a dispute with Ms. S. over custody and visitation.  The failure of New York law to allow for the possibility that a child can have more than two legal parents at the same time leaves a gap in the rights of de facto parents such as Ms. S.  Progressive legislation in California now recognizes the possibility of more than two parents in unusual cases.  New York might consider the desirability of legislative reform in light of the legal and social changes accompanying the Marriage Equality Act.  The facts of this case suggest that it would be desirable for Ms. S. to have more secure legal standing than “step-parent” in her relationship with J.C.

B.C. is represented by Yolanda Rios of the Legal Aid Society of Rochester, New York.  J.S. is represented by Marc A. Duclos, Assistant Conflict Defender, assigned because the Legal Aid Society could not represent both mothers simultaneously due to their differing legal interests.  The court appointed Beth A. Ratchford as attorney to represented the child’s interests.  James A. Napier represents Q.M.

New York Lesbian Co-Parent Custody Claim Precluded under 12-Year-Old Decision

Posted on: October 8th, 2013 by Art Leonard No Comments

The evil that courts do lives on…  On October 4, 2013, the New York Law Journal published Rockland County Family Court Referee Dean Richardson-Mendelson’s opinion in Matter of A.F. v. K.H., V-00918-13, rejecting all attempts by a lesbian co-parent to obtain judicial relief against her former partner’s action of excluding her from contact with the children they had been raising together.  The principal barrier to her case is the N.Y. Court of Appeal’s old decision, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which held in similar circumstances that the co-parent was, despite her relationship parental relationship with a child since the child’s birth, a “legal stranger” who did not have standing under New York law to obtain a declaration of her parental rights, custody or visitation, and that the circumstances that the women had agreed to raise a child together did not amount to “special circumstances” required under New York law to enable a legally-unrelated third party to seek custody of a child.

In A.F. v. K.H., the parents had registered as domestic partners, but the court mentions this only in passing and does not specify the jurisdiction.  A.F. and K.H. were living together as a couple when they decided to have children, using anonymous donor insemination for K.H. to conceive two children.  They lived together raising the children until they separated in July 2011, but continued to live on different floors in the same house, facilitating continued contact between A.F. and the children, who lived with K.H.  In February 2012 K.H. moved out with the children to her mother’s house in New Jersey, but then relocated back to another town in New York State in August 2012.  A.F. continued to have visitation two days a week and alternate weekends, until a promotion at her job made weekday visitation impossible.

A.F. contributed to the support of the children financially.  In May 2012, K.H. had filed a petition in Rockland Family Court seeking formal child support from A.G.  In support of this claim, her petition was full of factual allegations seeking to persuade the court that A.F. was a parent of the children who should be held to this responsibility.  But in August, she withdrew the petition, and the Support Magistrate marked it as withdrawn.

Visitation by A.F. and financial support for the children continued until an “altercation during a visitation exchange” in April 2013, after which K.H. has not allowed further visitation, resulting in A.F. filing this petition.

Referee Richardson-Mendelson found that the Alison D. decision, never overruled or modified by the Court of Appeals and subsequently followed by all four departments of the Appellate Division, had to control this case in terms of A.F.’s legal claim under the Domestic Relations Law.  One who would be declared a “legal stranger” to the child in 1991 remains a legal stranger today, as far as that statute is concerned, because the legislature never heeded the court’s suggestion that it address the issue of non-traditional families.  Second-parent adoption is legal in New York, as is step-parent adoption, but these parties never took those steps and did not marry in 2011 when New York enacted marriage equality.

Any local domestic partnership registration would presumably not change this, since custody and visitation are matters of state law, which may explain why the court does not explicitly factor that into its analysis.

Failing on a legal claim under the custody statute, A.F. also advanced equitable arguments.  First, she contended that the court should use the doctrine of equitable estoppel to hold that K.H. could not legally deny A.F.’s parental status because she had, in fact, treated A.F. as a parent of the child for several years, fostering the relationship of A.F. with the children and allowing visitation to continue for almost two years after the women’s relationship had ended.  But the Court of Appeals had directly rejected such an argument in the Alison D. case, so the court found that A.F. was precluded from making it.

Finally, A.F. argued judicial estoppel, a doctrine that prevents a party from taking diametrically opposite positions in legal proceedings.  A.F. pointed out that K.H. had filed a support petition in which she alleged that A.F. was a parent of the children, but now was arguing that she was not a parent.  A.F. contended that K.H. should not be able to assert these opposite positions.  But the court rejected this argument as well, pointing out that K.H. had withdrawn her support position longer before A.F. filed the custody and visitation petition.  The court also pointed out that this doctrine normally applies when a party’s assertion of the first petition had resulted in a legal judgment in her favor, that judgment then providing the basis to block her from taking the opposite position in a later proceeding.  In this case, however, K.H. withdrew her petition before any finding on A.F.’s parental status had been made and before any support order had been issued.

Thus, it made no matter to the court that New York is now a marriage equality jurisdiction.  Marriage equality provides equal marital rights, but it does not change the legal position of unmarried partners toward each other or their children.  Unless the New York legislature changes the rules, the legal invisibility of unmarried same-sex couples raising children will continue.