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 But in August, she withdrew the petition, and the Support Magistrate marked it as withdrawn.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.