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Posts Tagged ‘LGBT Law Association of Greater New York’

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.


Busy Culture Week: Kill Your Darlings, A Time to Kill, Peoples’ Symphony Concerts (Borromeo Quartet & Richard Stoltzman), Thor

Posted on: November 10th, 2013 by Art Leonard No Comments

A little bit of this, a little bit of that….  I already wrote about the Ned Rorem 90th Birthday Concert that I attended on Tuesday night (Nov. 5), but wanted to mention my other expeditions of the week.

On Monday night, I saw “Kill Your Darlings” at Film Society of Lincoln Center.  I thoroughly enjoyed this tale based on real events.  It focuses on Allen Ginsberg’s first year as a student at Columbia University, and the crowd he fell in with, some of whom went on to become part of his literary circle as “the Beats”.  But the focus of this is the radicalization of Ginsberg, who came from a somewhat sheltered New Jersey suburban childhood and fell in with a “rad” crowd centered around a wild young man enchantingly portrayed by Dane DeHaan, who steals the film right out from under Daniel Radcliffe (who plays Ginsberg).  Also notable are Ben Foster as William Burroughs and Michael C. Hall as a slightly older man who is obsessed with DeHaan’s character and comes to be a rival to Ginsberg for his affections.  A little curious internet snooping after seeing this film confirmed for me that the main lines of the story depicted in the film are accurate, but not all the details by any means.  I’m a sucker for “historical” films, however, and I also loved the score by Nico Muhly (who seems to be everywhere these days).

On Wednesday night I saw a performance of “A Time to Kill,” a Broadway play based on the novel of the same name by John Grisham.  When I read the book, many years ago, I thought it was a fantastic inside look at criminal defense work that should be read by law students.  I was surprised when somebody tried to turn it into a film, which did not turn out particularly well, and even more surprised when I heard somebody was turning it into a play (Rupert Holmes).  I don’t think this material translates well either to screen or stage.  The strength of Grisham’s novel is the inside look it gives at the procedure of putting together a defense of a capital murder charge, and much of the interesting detail goes by the wayside, since a film or play has to focus on characters and plotting.  And although some of the characters are interesting in their own right in the novel, that is mainly because of the back-stories Grisham gives them, much of which perforce is omitted from the dramatizations.  The plot itself is pretty far-out and unconvincing much of the time.  One keeps thinking “that couldn’t really happen, could it”?  On Thursday morning the Times ran the announcement that the play would be closing in two weeks.  If the actors received that announcement before Wednesday’s production, maybe that helps to explain the somewhat listless performance.  I was sitting in the first row of the rear mezzanine, and the overwhelming majority of seats up there were empty.  The closing notice was no surprise.

Thursday night I attended a farewell party at Bar-Tini for Brad Snyder, who has stepped down as Executive Director of the LGBT Law Association to take up a development position at the LGBT Community Center.  Brad has done wonders for LeGaL, professionalizing the office operation in many ways, putting together great annual dinner programs and CLEs, and most importantly in terms of my involvement working a visual transformation on Lesbian/Gay Law Notes and initiating the monthly Law Notes podcasts.  I’ll really miss him, and so will the organization.  His interim replacement while a search is launched for a permanent successor will be Matt Skinner.

Last night I attended Peoples’ Symphony Concert’s program at Washington Irving High School.  The Borromeo String Quartet caused a bit of a stir by performing from laptops instead of sheet music.  As their first violinist explained, this made it possible for them to play from full scores instead of individual parts, which they deemed advantageous.  The laptops were fitted out with foot pedals that they used to effect the “page turns” (actually just advancing a page on the pdf’s that were exhibited on their screens.  In the first half they gave us a suitably serious performance of Beethoven’s “Serioso” String Quartet, Op. 95, and the first NY performance of Lera Auerbach’s String Quartet No. 7, which was written for them.  The Auerbach piece is just modernistic enough to be a little challenging for the audience, but not off-putting to anybody who stays current on new music trends.  She has mastered writing for this combination of instruments, and the finale, in particular, ended with a real haunting repeated melody that kept playing in my head after the piece was over.  I hope they get to record it.  (The concert was taped; I suspect this was to be able to provide Auerbach with a recording of her piece.)  After intermission, Richard Stoltzman joined the quartet for a performance of Mozart’s Clarinet Quintet, one of that master’s last works.  As a longtime fan of Stoltzman, I’m sorry to report that unless this concert was an outlier, he is no longer up to performing in concert.  Although he’s only 70 — not a really great age as clarinet players go, as far as I know — the breath control is no longer dependable, the fingers are a bit stiff, and the results are sometimes distressing.  His tone on high notes was shrill and metallic, and there were little hesitations at the start of arpeggios and scales that seemed to me more about technical weakness than interpretation.  These problems were particularly evident when it came to long sustained notes in the sublime adagio movement; he had difficulty sustaining them with any kind of quality.   The third movement – menuet and trio – was the least problematic, but that was partly because Mozart doesn’t use the clarinet during the trio portion.  As an encore, they played a movement from another clarinet quintet that Mozart abandoned; Kitchen announced that musicologist Robert Levin completed the movement from Mozart’s surviving sketches.  It struck me as interesting without being special, and that may explain why Mozart abandoned the project.

Finally, for a little mindless diversion this morning before getting to the office, the newest film in the “Thor” series, with Chris Hemsworth as the title character.  If one had not seen the first film, one would be very puzzled about who these characters are and what is going on.  Even with that, the plotting was minimally comprehensible most of the time, the 3-D effect was minimal, and the screen was filled up with CGI more than people a lot of the time.  Lots of noise on the soundtrack, too.  In other words, I got what I was expecting – some mindless, fast-paced entertainment.  The guy who plays Thor’s evil brother stole all his scenes, Anthony Hopkins was almost unidentifiable as Odin, Thor’s father.   Well, it’s a franchise.  If the film does well, there will be a third Thor….