New York Law School

Art Leonard Observations

Posts Tagged ‘sperm donor’

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.”

 

N.Y. Appellate Division Applies New Precedent to Find Standing for Gay Dad Seeking Custody

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

In what may be the first application of the recent New York Court of Appeals decision, Brooke S.B. v. Elizabeth A.C.C., 2016 N.Y. Slip Op 05903 (August 30, 2016), which adopted a new definition of “parent” for purposes of the state’s Domestic Relations Law so as to account for cases of same-sex couples raising children, the New York Appellate Division, 2nd Department, based in Brooklyn, ruled on September 6 that a gay man who was parenting twin children conceived through in vitro fertilization using his same-sex partner’s sperm, had standing to seek custody of the children after the men split up.  The case, In re Anonymous, 2016 N.Y. App. Div. LEXIS 5833, had an interesting additional wrinkle, in that the plaintiff is the biological uncle of the children, because his sister served as the surrogate for their gestation and birth.  In a separate opinion issued on the same date, 2016 N.Y. App. Div. LEXIS 5834, the court rejected a challenge to the parental standing of the surrogate and upheld the temporary award of visitation to the co-parent while the case was pending.

The two cases consolidated in the Brooke S.B. ruling involved lesbian couples who had their children through donor insemination of one of the partners.  This new ruling extends that case to a situation where the birth mother, a surrogate, is still the legal parent of the children, and the dispute is between the father who donated the sperm used to conceive the children and his former partner, whose sister bore them.

The two men, identified in the court’s opinion by their first names as Joseph P. and Frank G., lived together in New York State from 2009 through February 2014, but did not marry when same-sex marriage became possible in New York.  They wanted to raise children together who would be genetically related to both of them, so Joseph took advantage of a long-standing promise by his sister, Renee, who had her own children, that she would bear children for her brother once he met his “life partner.”  Their understanding was that the two men would be the children’s parents, and that Renee would have a continuing role in the lives of any children resulting from this process.

The three adults executed a written surrogacy agreement in which Renee agreed to become pregnant using Frank’s sperm and to surrender her rights as a biological mother so that Joseph could adopt the resulting child or children.  They used an in vitro fertilization process (“test tube babies”), in which it is customary to implant more than one fertilized egg to ensure a successful conception.  Renee bore fraternal twins, a boy and a girl, in February 2010.  It is likely that Frank and Renee were listed on the twins’ birth certificates as the parents, but the court’s opinion does not mention this subject.

For the first four years after Renee gave birth, Joseph and Frank raised the children together, sharing parental rights and responsibilities, and the children regarded both of them as their parents.  They called Joseph “dada” and Frank “dad.”  The court’s opinion doesn’t say what they called Renee, but it does say that she frequently saw them.

Joseph and Frank separated early in 2014.  The children continued to live with Frank, but Joseph visited and cared for them “daily,” according to the court’s opinion, until May 2014.   Then Frank suddenly cut off contact between Joseph or Renee and the children.  In December 2014, Frank moved to Florida with the children, without giving any notice to Joseph or Renee, and without seeking permission from the court.  Although Renee had agreed in the surrogacy agreement to give up any claim of parental rights in order for Joseph to be able to adopt the children, they had never taken that step of adoption, so her parental rights had not been legally terminated.  Frank did not seek court permission to remove the children from the state, which would normally be required since he did not have permission from Renee, their legal mother.

After Frank’s move, Renee filed an action in the Family Court seeking custody of the children as their biological mother, and Joseph filed an action petitioning to be appointed their legal guardian.  Since the New York Court of Appeals had then recently reaffirmed its 1991 ruling, Alison D. v. Virginia M., 77 N.Y.2d 651, under which a person in Joseph’s position would not have standing to seek custody, a guardianship appointment would be the next best thing.  However, in June 2015 Joseph reconsidered his position, withdrew the guardianship petition, and filed his own action seeking custody as a de facto parent.

Frank then filed a motion to throw out Joseph’s case, relying on Alison D.’s definition of “parent” as being limited to a biological or adoptive parent, but Orange County Family Court Judge Lori Currier Woods denied the motion, and Frank appealed.  The appellate court’s opinion does not describe Judge Woods’ reasoning for denying Frank’s motion.

In its unanimous September 6 ruling, the panel of Justices L. Priscilla Hall, Jeffrey A. Cohen, Robert J. Miller and Betsy Barros noted that while this appeal was pending, the Court of Appeals had decided Brooke S.B. v. Elizabeth A.C.C., overruling the Alison D. decision and adopting a new definition of “parent.”  The Court of Appeals said that the old definition had “become unworkable when applied to increasingly varied familial relationships.”  Under the new definition, a partner of a biological parent will have standing to seek custody if the partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” 

In this case, testimony about the verbal agreement between the men was bolstered by the written surrogacy agreement between the men and Renee.  This is ironic, since under New York Law the surrogacy agreement is itself against public policy and unenforceable in court.  For that very reason, Frank cannot rely on the Surrogacy Agreement in defending the separate custody case brought against him by Renee, since a statutory provision says that a surrogacy agreement cannot be considered by the court in a custody proceeding involving the surrogate mother.  

The Appellate Division found that “Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents.”  The court also pointed out that the men “equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents.”  Thus, a straightforward application of the new precedent gave Joseph standing to seek custody.

Frank had also argued, as part of a belated attempt to get permission from the Family Court to relocate the children to Florida, that Renee’s parent standing was terminated due to her entry into a surrogacy agreement with the two men. Rejecting this argument, the court said that such rights were not terminated.  “Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable,” wrote the court.  As such, a surrogacy contract has no legal effect.  “Moreover,” the court observed, “Domestic Relations Law Sec. 124(1) expressly states that ‘the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.’”  The court also noted that a hearing would be required to determine whether it was in the best interest of the children to allow Frank to relocate them to Florida.  The court also affirmed the Family Court’s award to Joseph of specified visitation with the children while the case is pending.

This ruling does not mean that Joseph will automatically get custody.  The case goes back to the Family Court for a determination whether an award of custody to Joseph is in the best interest of the children.  Furthermore, although Renee’s custody petition is mentioned in the opinion, the appellate court gives no indication what effect its ruling will have on her custody claim.  However, because New York law does not provide that a child can simultaneously have three legal parents, the Family Court will have to take account of Renee’s continued legal status as the children’s parent in making a determination whether to award custody to Joseph, and whether that would require terminating the parental status of either Renee or Frank.  This is a complicated business, and the New York State legislature needs to modernize our Domestic Relations Law to sort through the intricacies and provide clear guidance to the courts when dealing with “non-traditional” families.  Left to their own devices without such guidance, it is difficult to predict what the courts will do.

Kathleen L. Bloom of New Windsor represents Joseph.  Michael D. Meth and Bianca Formisano of Chester represent Frank.  Gloria Marchetti-Bruck of Mount Kisco was appointed by the court to represent the interest of the children.  Since Renee was not involved in this appeal, the opinion does not identify her counsel.