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.
Tags: Bianca Formisano, Brooke S.B. v. Elizabeth A.C.C., gay parents, In re Anonymous (Gay Father custody case), in vitro fertilization, Joseph P. Gloria, Kathleen L. Bloom, Michael D. Meth, New York Appellate Division 2nd Department, same-sex parents, sperm donor, surrogacy agreement, surrogate mother