NY Family Court Uses Judicial Estoppel In Lesbian Co-Parent Custody Case

Suffolk County, N.Y., Family Court Judge Theresa Whelan used the doctrine of judicial estoppel to find that a lesbian mother who had previously acknowledged her former partner’s parental status when seeking a support order from the court, was precluded from denying the partner’s parental status in opposition to a custody/visitation petition.  Judge Whelan’s April 2, 2013, ruling was published in the New York Law Journal on May 10.

The parties, identified as Estrellita A. and Jennifer D., registered as domestic partners in 2007.  They decided to have a child and chose a sperm donor through North Shore University Hospital.  Jennifer became pregnant through donor insemination and their child was born on November 23, 2008.  Because of the donor conception, no father was identified on the birth certificate, and Jennifer was identified as the sole parent. Although the women had discussed having Estrellita adopt their daughter, no adoption petition was filed.  In September 2012, the women stopped living toether, and on October 24, 2012, Jennifer filed a petition with the Family Court seeking child support payments from Estrellita. 

Jennifer’s petition stated that she and Estrellita had a child in common, and asked the court to rule upon whether Estrellita should be delcared a parent for purposes of establishing a child support order.  After a hearing, the court found that Estrellita was a parent to the child and charged her with a duty to pay child support.  Judge Whelan issued that order on January 16, 2013.  Meanwhile, Estrellita filed her own petition on January 10, seeking custody of the child.  In her petition, Estrellita contended that it would be in the child’s best interest that she have custody as “she is better suited to foster a relationship between the child and her biological mother,” according to Judge Whelan’s summary of the petition.  After  Judge Whelan’s support order was issued, Estrellita amended her petition to refer to the finding that she is a parent of the child.  On January 30, Jennifer filed a motion to dismiss the Custod/Visitation Petition, arguing that as a matter of New York child custody law, Estrellita is a “legal stranger” under Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), and thus lacks standing to seek custody.

In the Alison D. case, the New York Court of Appeals construed the domestic relations law to limit the right to seek custody or visitation to a person who is either a biological or adoptive parent of a child.  This, the court asserted, would meet the intent of the legislature that adopted the statute.  Reflecting this case law, Judge Whelan wrote, “In the realm of same-sex parents, the Court of Appeals has consistently ruled that absent an adoption, the non-biological partner is not a parent under Domestic Relations Law Sec. 70,” the provision authoring custody/visitation petitions. 

Jennifer argued that under this case law, Estrellita as precluded from seeking custody or visitation.  “If the facts present here were the same as in the cases cited by respondent,” wrote the judge, “the Court would agree.  Of course, the Family Court is mandated to apply the rulings of the Court of Appeals.  However, respondent omits critical facts from her argument and it is these facts that defeat her argument.  Respondent, in her own child support petition alleges that she and the petitioner herein have ‘a child in common’.  Further she requested and received an estoppel hearing.  At that hearing respondent testified, among other things, that petitioner not only performed as a parernt, she was in fact a parent.  The court relying on this testimony issued an order adjudicating petititoner to be a parent and referred the matter to the support magistrate for the entry of an appropriate child support order.  Now, in a complete reversal, and in an effort to preclude petitioner from having her day in court, respondent now claims that petitioner has no standing to bring a custody/visitation proceeding because petitioner is not a parent.  Colloquially, this is known as ‘having your cake and easting it too.’  Judicially, it is referred to as ‘inconsistent positions’ which this court will not countenance.”

Judge Whelan pointed out that a court can resort to the doctrine of judicial estoppel to prevent a party from taking such an inconsistent position.  “Having petitioned this court to recognize the petitioner herein as a parent, having testified that petitioner is in fact a parent and having prevailed in that matter, the respondent is judicially estopped in this custody/visitation proceeding from asserting that petitioner is not a parent.”  Judge Whelan observed that this basis of decision was distinct from “equitable estoppel,” which the Court of Appeals had ruled out in the Alison D. case as a basis for finding custody standing, since the ruling was based on Jennifer’s own prior conduct in court proceedings basically asserting the fact of Estrellita’s parenthood, under oath, in order to get the support order.

Taking note of case law supporting the “important liberty interest of the biological parent to exercise control over who associates with their child,” Judge Whelan concluded: “This biological parent deliberately sought to involve her former partner in her child’s life at least until her financial majority.”

Interestingly, Judge Whelan did not mention the parties’ domestic partnership in support of her decision.  Perhaps this is because domestic partnership in New York is a creature of local law (county or municipal) and so cannot create rights under state law.  Had Estrellita and Jennifer been legally married when their child was born, the result would be different.   Indeed, the Court of Appeals has even recognized an out-of-state civil union as being relevant to an individual’s standing to petition for custody of a child born after the civil union was contracted.  And, under the New York Marriage Equality Law enacted in 2011, of course, a child born to a married woman will be presumptively the legal child of her same-sex spouse.

This, of course, is not a ruling on the merits of the Custody/Visitation petition, but merely a ruling that Estrellita may proceed to a hearing on the merits in her attempt to prove that it would serve the best interest of the child to award custody to her.  Estrellita is represented by the firm of Gervase & Mintz, Garden City.  Jennifer is represented by Margaret Schaefler, Central Islip.  Attorney appointed to represent the interest of the child is Jennifer Marin, Legal Aid Society of Suffolk, Central Islip.    Ms. Marin had argued to the court an alternative theory for allowing Estrellita to petition: the “extraordinary circumstances” doctrine under which a court will a “legal stranger” to seek custody.  However, this constellation of facts has become too common — and is too much like the facts in Alison D. — to be a convincing instance of “extraordinary circumstances,” at least in the view of Judge Whelan.

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