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

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.