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Posts Tagged ‘Alison D. v. Virginia M.’

Manhattan Appeals Court Revives Kelly Gunn’s Custody Lawsuit Against Circe Hamilton

Posted on: July 2nd, 2018 by Art Leonard No Comments

A five-judge panel of the New York State Appellate Division, First Department, based in Manhattan, has revived a lawsuit by Kelly Gunn, who is seeking joint custody of a child adopted by her former partner, Circe Hamilton. New York Supreme Court Justice Frank Nervo had dismissed the lawsuit on April 13, 2017, finding that despite her close relationship with the child, Gunn was not a “parent” under New York’s Domestic Relations Law, so lacked “standing” to sue for custody or visitation.  But the appellate court unanimously ruled on June 26, 2018, in an opinion by Justice Judith J. Gische, that Gunn should have another chance to call upon the equitable powers of the court to recognize her relationship with the child.  In re K.G. v. C.H., 2018 WL 3118937, 2018 N.Y. App. Div. LEXIS 4617, N.Y. Slip Op 04683.

This is just the latest of a series of opinions dating back more than a quarter century, grappling with the question of when the courts should recognize parental standing where an unmarried same-sex couple was raising a child together, broke up, and the birth or adoptive parent resisted their former partner’s attempt to continue in a parental role with the child.

In 1991, the highest New York court’s answer to the question was “never,” in the case of Alison D. v. Virginia M. The Court of Appeals said then that only a person related to the child by blood or adoption could have standing to seek custody or court-ordered visitation, giving a narrow interpretation to the word “parent” as used in the statute, which did not itself define the term.  Then-Chief Judge Judith Kaye wrote a dissent that was widely quoted by courts in other states as they adopted legal theories to allow these “second parents” to sue for custody or visitation rights.  Judge Kaye argued that the court’s decision failed to take account of the reality of non-traditional families, including those headed by LGBT couples, and would ultimately be harmful to the best interests the children, which courts would be precluded from considering if “second parents” did not have standing to bring the cases.

But the New York appellate courts stood firmly opposed to allowing such lawsuits until August 2016, when the Court of Appeals modified its position in the case of Brooke S.B. v. Elizabeth A. C. C. In that case, the court focused on a written agreement that two women made to jointly undertake the creation of a new child through donor insemination for them to raise together, and found that where the couple had gone through with their agreement, had the child, and raised it together for some time before splitting up, it was appropriate to allow the second parent to seek custody or visitation so that a court could determine whether it was in the child’s best interest to continue the second parent’s relationship with the child.

The court’s opinion in Brooke S.B., written by the late Judge Sheila Abdus-Salaam, was narrow and cautious, announcing a ruling based on the facts of that case, and leaving to later development other possible theories for second parents to use. In one case decided shortly after, the court accepted a “judicial estoppel” theory, where the birth mother had sued her former partner for child support, alleging that she had a parental obligation.  When the former partner than sued to assert parental rights, the Court of Appeals said that the birth mother could not deny her former partner’s parental status, which would be inconsistent with her position in the earlier case, even though the parties had not made a formal agreement like the one in Brooke S.B..

Kelly Gunn and Circe Hamilton, who had been together since 2004, agreed in 2007 that they would undertake an international adoption and raise a child together as a family. The plan was that Hamilton would adopt a child overseas, bring the child home to New York, and that Gunn would then complete a “second parent” adoption, a procedure which has been possible in New York for many years.  However, these plans had not come to fruition when the women’s romantic relationship ended in December 2009.

In 2010, Gunn and Hamilton signed a separation agreement negotiated with the assistance of lawyers, formally ending their cohabitation and romantic relationship, and dividing up their assets (including real property). Despite this breakup, Hamilton continued to deal with adoption agencies and eventually did adopt a child overseas with Gunn’s encouragement in the summer of 2011.  Gunn was in Europe on business at the time and met Hamilton and the child in London, from where they flew back to New York.  Although the women’s romantic relationship had ended, they had remained friends, and there is an extensive record of communications between them, which the trial court considered in reaching a determination that the 2007 agreement had not survived the breakup of the relationship.

Despite the breakup, Gunn was eager to be involved in the child’s life, and Hamilton accommodated her by allowing frequent contact, resulting in Gunn forming an attachment to the child. In August 2016, around the time that the Court of Appeals had overruled the Alison D. decision in the Brooke S.B. case, Hamilton, a British native, announced that she was planning to move back to England with the child and Gunn quickly sprang into action, filing this lawsuit and seeking a temporary order requiring Hamilton to remain in New York with the child while the case was litigated.  Gunn claimed that under the Brooke S.B. case, she had “standing” to seek joint custody and visitation rights because of the 2007 agreement the women had made.

Justice Nervo did not dismiss the case outright, and there was a temporary order, but after a lengthy trial he determined that the 2007 agreement had not survived the women’s breakup, and that by the time Hamilton adopted the child, she was acting on her own. The judge concluded that Gunn was a friend who had formed an attachment with the child, but not a “parent” within the meaning of the Domestic Relations Law, so she did not have standing to seek any parental rights.

The decision proved controversial from the moment it was announced. Despite the narrowness of the Court of Appeals ruling in Brooke S.B., that court had acknowledged the possibility that in a future case it might be appropriate to recognize parental standing in the absence of an express agreement, using a legal doctrine called “equitable estoppel,” which has been recognized by courts in several other states in lesbian parent custody disputes.  Gunn argued that this was such an appropriate case.  However, Justice Nervo, having concluded that Gunn did not have standing under his interpretation of the Brooke S.B. decision, had ended the trial without letting Gunn present additional evidence that could be relevant to an equitable estoppel claim.

Writing for the Appellate Division, Judge Gisch found that this may be the kind of case where equitable estoppel is appropriate. Certainly, the Court of Appeals’ Brooke S.B. decision did not foreclose the possibility.  While agreeing with Justice Nervo that the facts supported a conclusion that the 2007 agreement had terminated together with the parties’ romantic relationship well over a year before Hamilton adopted the child, and thus the case did not come squarely within the holding of Brooke S.B., nonetheless the court held that both parties should have the opportunity to present evidence about whether this would be an appropriate case to apply equitable estoppel.

Equitable estoppel might be a basis for Gunn to have standing to sue, but an ultimate decision on the merits would require the court to determine what would be in the best interests of the child. As to that, the court said, the child’s voice was an indispensable component, and was so far conspicuous by its absence from this case.   It is usual to appoint a person – frequently a lawyer – as “guardian ad litem” to represent the interest of the child in a custody and visitation dispute when the child is deemed too young and immature to speak for him or herself.  In this case, the child was born in 2011, and so by the time a hearing will be held will be seven years old – perhaps old enough to speak for himself, but that is something for Justice Nervo to determine.

The trial court will have to decide whether this is a case where Gunn had assumed a sufficiently parental role toward the child, with the consent or at least the acquiescence of Hamilton, to give her “standing” to be considered a parent for purposes of a custody and visitation contest, and then whether, under all the circumstances, it would be in the best interest of the child for Gunn to continue playing a parental role in the child’s life with the court ordering Hamilton to allow this relationship to continue.

Gunn had asked to have the case assigned to a different judge, but the Appellate Division declined to do so, without explanation.

Gunn is represented by Robbie Kaplan and her law firm, Kaplan & Company, as well as lawyers from Morrison Cohen LLP and Chemtob Moss & Forman LLP. Hamilton is represented by lawyers from Cohen Rabin Stine Schumann LLP.  The LGBT Law Association Foundation of Greater New York submitted an amicus brief to the court, with pro bono assistance from Latham & Watkins LLP, not taking sides between the parties but discussing the possible routes open to the court in applying the Brooke S.B. case to this new situation.

 

NY Family Court Judge Takes Co-Parent Rights a Step Further in Filiation Case

Posted on: June 16th, 2017 by Art Leonard No Comments

Rockland County Family Court Judge Rachel E. Tanguay, ruling on a question of first impression under New York Law, decided that when a lesbian couple had children together and raised them together as a family for several years before splitting up, the co-parent was entitled to an Order of Filiation recognizing her parental status for all purposes. Judge Tanguay’s ruling in A.F. v. K.H., 2017 N.Y. Slip Op. 27196, 2017 WL 2541877 (Fam. Ct., Rockland Co., May 25, 2017), takes New York law one step further than the Court of Appeals’ landmark 2016 decision in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, which had overruled a 25-year-old precedent to hold that a co-parent can seek custody and visitation in such a situation.

A.F. and K.H. became registered domestic partners on August 25, 2005, according to the findings of a Family Court Attorney Referee at an earlier stage of this case, and they decided to have children, with K.H. becoming pregnant through donor insemination with sperm from an anonymous donor. The women had two children whom they raised together until separating in July 2011, ironically right around the time that the New York Marriage Equality Law went into effect.  There was no dispute that they considered each other to be “parents” of both children.  In fact, when the children were born they were given A.F.’s surname. But after the break-up, K.H. resisted A.F.’s assertion of parental rights and even took the step of getting the court to change the children’s surname to hers.  A.F. sued to preserve her contact with the children.

At that time, the binding precedent in New York courts was Alison D. v. Virginia M., 77 N.Y.2d 651, a Court of Appeals ruling from 1991, which had been recently reaffirmed by the court in 2010, under which a person in the position of A.F. was deemed to be a “legal stranger” to the children who did not have standing under the Domestic Relations Law to seek custody or visitation. As a result, A.F.’s lawsuit was unsuccessful, with the Appellate Division affirming the trial court’s dismissal of her case in 2014.  From that point forward, A.F. had no contact with the children until her new lawsuit got underway.

After the Court of Appeals decided Brooke S.B., overruling Alison D. and providing that under certain circumstances a lesbian co-parent would have standing to seek custody and/or visitation with children she had been raising with her former partner, A.F. decided to try again. In her new custody case, she also sought a formal Order of Filiation from the court that would confer on her full parental rights for all legal purposes, not just custody and visitation.  This ultimately was the sticking point in the case, because after it was clear that the Family Court was going to apply Brooke S.B. to allow A.F. to revive her custody and visitation claims, K.H. agreed to a negotiated settlement about custody and visitation.

That left the Order of Filiation as the only issue for Judge Tanguay to decide. K.H., and the attorney appointed by the court to represent the children’s interest, continued to strongly oppose such an order.  Under an Order of Filiation, A.F. would have equal rights to participate in all significant parenting decisions, extending to such matters as education, medical care, inheritance and other circumstances where parental status may be significant, and she could also object to any adoption of the children by a new partner or spouse of K.H.

In Brooke S.B., the court carefully acknowledged “limited circumstances in which such a person has standing as a ‘parent’ under Section 70” of the Domestic Relations Law. “Specifically,” wrote Tanguay, “the Court rejected ‘a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital ‘parents’ who are raising children.”  Instead, in a cautious way, the court narrowed its decision to the precise facts of the case before it, and wrote, “We stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation.”  Seizing upon this language, K.H. argued that the Court of Appeals had not ruled that a person in A.F.’s position was entitled to be recognized as a parent for all purposes.

“At first blush,” wrote Tanguay, “it would appear that the Court of Appeals in Brooke was attempting to limit its holding to conferring standing to a party only.” But, she pointed out, the court reached this point by “broadening the definition of ‘parent’ to include a non-biological, non-legal ‘parent’ under certain circumstances.”  And the court got there by tracing the evolution of case law and statutes, including, of course the 2011 Marriage Equality Act.  Indeed, the Brooke S.B. decision came more than a year after the U.S. Supreme Court ruled that same-sex couples have a constitutional right to marry, in an opinion that stressed the importance to children being raised by same-sex couples of having two legally recognized parents.

In Brooke, itself, Judge Eugene Pigott, concurring with the court, wrote, “Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation.” So the issue in this case was whether to bring that one step further to cover same-sex couples who had their children and split up before marriage equality was available in New York.  Although A.F. and K.H. were registered domestic partners, that status under local law did not import any legal parental rights, which are a matter of state law.  Ultimately, Judge Tanguay concluded, the lack of a modern statutory scheme that would explicitly handle this situation is “manifestly unfair not only to the non-biological parent, but to the children who deserve to have a two-parent family when same was intended at their conception.”  The best interests of the children should be the overriding factor.

“The majority in Brooke concluded its opinion by stating, ‘We will no longer engage in the deft legal maneuvering necessary to read fairness into an overly-restrictive definition of parent that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles,’” wrote Tanguay, who continued: “This court will not allow legal maneuvering that permits A.F. to be a ‘parent’ for purposes of custody, visitation and child support, but without more.  It is simply inequitable, and not consistent with prevailing common law as set for herein.”

She granted A.F.’s petition and decreed that the court “issue an Order of Filiation for each child listing A.F. as their legal parent forthwith.”

A.F. is represented by Sherri Donovan of New York City. K.H. is represented by Adrienne J. Orbach of White Plains.  Shiza Khan of New City, N.Y., served as appointed Attorney for the Children.  K.H. was given 30 days to take an appeal from this decision, which was issued on May 25.  An appeal would not delay A.F.’s contact with the children, since the parties had stipulated an agreed-upon arrangement, so the only issue on appeal would be whether A.F. will be accorded all parental rights through the Orders of Filiation.

Manhattan Court Finds Former Same-Sex Partner of Adoptive Mother Lacks Standing to Contest Custody of the Child

Posted on: April 24th, 2017 by Art Leonard No Comments

Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place.  K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.).  In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department, in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.

Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling.  In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated.  This new case posed different facts.

In its Brooke S.B. ruling, written by the late Judge Sheila Abdus-Salaam, the Court of Appeals had cautiously abandoned its prior bright line test, under which a biologically-unrelated same-sex co-parent was treated as a legal stranger without standing to seek custody or visitation, making an exception for situations where a parental relationship was created by mutual consent within the context of donor insemination.  “Because we necessarily decide these cases based on the facts presented to us,” wrote Judge Abdus-Salaam in that case, “it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement.  Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.”

Judge Nervo’s opinion referred to the parties by first initials, but press reporting after his opinion was released included their names.

Gunn and Hamilton “were in a relationship from 2007 to 2009, entering into a cohabitation agreement on May 18, 2007,” wrote the judge.  “It is undisputed that during their relationship, they entered into a plan to adopt and raise a child together.  It is also undisputed that the parties’ relationship deteriorated over time and they entered into a separation agreement on May 28, 2010.”

About ten months later, Hamilton learned that a child was available for adoption in Ethiopia and began to take the steps to complete the adoption.  Gunn claims that despite their separation, she facilitated the adoption through a substantial monetary payment as part of their separation agreement, which made it possible for Hamilton to “establish a home sufficient to pass inspection by the adoption agency.”  She also arranged a business trip to be able to travel with Hamilton and the child, Abush, on the London-to-New York part of Hamilton’s trip home with the child after obtaining custody of him in Ethiopia.  Gunn also presented evidence of her continuing involvement with the child after the return to New York, although Gunn conceded that “her involvement with the child was limited because [Hamilton] would disapprove.”

On the other hand, Hamilton argued that the couples’ plan to adopt a child and raise the child together “dissolved contemporaneously with the dissolution of the parties’ relationship.”  She argued that Gunn’s involvement after Hamilton adopted the child was “only a supportive role as a close friend” of Hamilton and the child.  She contended that Gunn was “merely a godmother,” not a parent.  She also argued that she did not “encourage, facilitate or condone a parental relationship” between Gunn and the boy, who is now seven years old.

Thus, this case did not precisely map the factual contours approved by the Court of Appeals in the Brooke S.B. case.  In attempting to adapt that ruling and apply it to these facts, Judge Nervo interpreted the earlier case to extend to an adoption situation, but only if the plaintiff could show, by clear and convincing evidence, that the parties had planned to adopt the child and raise it together and carried out their plan within the context of their continuing relationship.  While these parties had such a plan prior to their separation, he found, in order to meet this test, the plan had to have continued through the adoption process and the raising of the child, which he held did not occur in this case.

The timing of Gunn’s lawsuit is interesting.  Although Hamilton adopted Abush in 2011, Gunn did not file her lawsuit until September 1, 2016, two days after the Court of Appeals decided Brooke S.B.  Prior to that decision, of course, her suit would have been blocked by the precedent that the Court of Appeals overruled, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991).  In an April 20 article about the case, the New York Times reported that Gunn went to court “to prevent her former partner . . . from moving to her native London” with the child.  Gunn sought immediate relief when filing her complaint, which first went to Justice Matthew F. Cooper, who issued an interim order restraining Hamilton from relocating Abush to London while the case was pending.  The matter was then assigned to Justice Nervo, who scheduled a hearing to begin just a week later, on September 8.  The hearing continued sporadically until February 16, 2017. Hamilton had responded to the complaint on September 6 with a motion to dismiss the case.  Gunn finished presenting her witnesses on November 23.  After evaluating Gunn’s evidence, Judge Nervo denied Hamilton’s motion to dismiss, finding that Gunn’s evidence, as yet uncontradicted, had established what lawyers call a prima facie case, a basis for concluding that she had a potential claim to parental standing.

However, after hearing Hamilton’s evidence, which ended on February 16, Justice Nervo concluded the factual and legal issues against Gunn, granted Hamilton’s motion to dismiss, denied Gunn’s motion and vacated the interim orders that had been issued by Justice Cooper. He also dissolved interim orders that had enabled Gunn to continue seeing the child while the case was ongoing.  However, recognizing that Gunn would likely appeal and could have grounds to argue that the Court of Appeals’ precedent should be given a broader reading, Nervo stayed his order for twenty days.  A prompt appeal and petition to the Appellate Division to preserve the interim relief might preserve the status quo while an appeal is considered.

Justice Nervo’s opinion includes a lengthy summary of the testimony presented by both parties, which led the judge to conclude that Gunn had fallen short of showing by clear and convincing evidence that she had a parental relationship with the child based on a mutual agreement with Hamilton.  “Upon the presentation of the evidence of both parties over 36 days of testimony, constituting a hearing transcript of 4,738 pages, 215 exhibits on behalf of petitioner and 126 exhibits on behalf of respondent, the court finds the petitioner has on numerous occasions stated that she did not want to be a parent and gave no indication to either respondent or third parties that she either wanted this role or acted as a parent,” wrote Nervo.  “Therefore, she has failed to establish by clear and convincing evidence that she has standing as a parent under Domestic Relations Law Section 70, as established In the Matter of Brooke S.B. v. Elizabeth A.C.C.”

The court never addressed the best interest of the child, usually a key finding in a custody dispute, because in order to put that issue into play, a plaintiff has first to establish her status as a parent or, under New York cases, show extraordinary circumstances in order to invoke the court’s authority to require a biological or adoptive parent to engage in a contest about the best interest of her child.  Part of Gunn’s argument on appeal will likely be that Brooke S.B. has implicitly overruled the extraordinary circumstances requirement in cases involving same-sex partners who had jointly planned to raise a child together, even if the case does not involve donor insemination or a continuous relationship of the women prior to the adoption.

Reading through Judge Nervo’s summary of the evidence, which is unlikely to be upset on appeal, as appellate courts generally refrain from second-guessing the factual findings of trial judges in custody and visitation cases unless there is an appearance of substantial bias against a party or failure to account for significant evidence in the hearing record, it sounds like he concluded that although Gunn had formed a relationship with Abush and there were some indications that it was deeper than a mere acquaintanceship or babysitter kind of relationship, on the other hand there was significant evidence that Gunn had expressed reservations during her relationship with Hamilton about the adoption plans and had never directly communicated to Hamilton after the adoption that she desired to take on the responsibility of being a co-parent of the child.  Since the Court of Appeals emphasized in its decision that standing would arise from a mutual agreement between the child’s biological or adoptive parent and her same-sex partner, and there was no sign of such an agreement at or after the time of this adoption, the case could not be made to fit precisely into the Court of Appeals precedent.

On the other hand, it may be open to the Appellate Division to take a different view, especially since the Court of Appeals disclaimed making a ruling on factual situations different from those in the cases it was deciding.  Clearly, the Court of Appeals rejected the bright line test of the old Alison D. v. Virginia M. case.  Whether it will countenance a broader exception to the standing rules than it carved out in Brooke S.B. is uncertain.

Gunn’s attorney, Nancy Chemtob, told the New York Times, “I believe that this decision doesn’t follow Brooke.”  The Times reported that “Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage.  ‘That would be scary to parents,’ she said.”

 

New York Court of Appeals Overrules Alison D., Sets New Test for Co-Parent Standing

Posted on: August 30th, 2016 by Art Leonard No Comments

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child. The opinion for the court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 Westlaw 4507780 (August 30, 2016), provides that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.”

The court was ruling on two cases which originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke V. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together.  Elizabeth became pregnant through donor insemination and bore a son in June 2009.  Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010.  Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated, and Elizabeth terminated Brooke’s contact in 2013.  Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the old Court of Appeals ruling, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child.  Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents.  At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals.  The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination.  They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity.  Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012.  Estrellita continued to have contact with the child with Jennifer’s permission.  In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita.  Estrellita responded by petitioning for legal visitation rights.  The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support.  However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim.  The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case.  The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest.  The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case.  Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interest of the child.  By adopting this narrow decision, the court cut short legal proceedings before the child’s best interest could even be considered.  Unfortunately, Judge Kaye passed away before learning that her dissent would be vindicated in this new ruling.  However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large numbers of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court five years ago, in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserting that Alison D. was inconsistent with some subsequent rulings.  That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D.  In that same case, Judge Robert Smith (also now retired) argued that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents.  The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed.  Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights.  The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interest of the child.  Judge Abdus-Salaam emphasized the necessity of showing an agreement, that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion.  All of these judges were appointed by Governor Andrew Cuomo, a Democrat.  The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just five years ago in a ruling that praised Alison D. as creating a “bright line test” that avoided unnecessary litigation and uncertainty about parental standing.  In that case, Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity.

Judge Pigott argued that since we now have marriage equality and co-parent adoption in New York, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases.  In %Estrellita v. Jennifer%, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding.  In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody.  The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship.  Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child.  In the Estrellita case, Andrew Estes represents Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child.  The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

N.Y. Appellate Division Approves Comity for California Parentage Rights of Lesbian Co-Parent

Posted on: April 11th, 2016 by Art Leonard No Comments

The New York Appellate Division, Second Department, an intermediate appellate court based in Brooklyn, issued a unanimous ruling on April 6 affirming a decision by Suffolk County Family Court Judge Deborah Poulos recognizing the parental status of a lesbian co-parent, now resident in Arizona, who is seeking visitation with two children who were conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse.  The birth mother and children live in Suffolk County.  The case is Matter of Kelly S. v. Farah M., 2016 N.Y. App. Div. LEXIS 2533, 2016 N.Y. Slip Op 02656.

The lead sentence above is complicated, but not more so than the decision by Justice Sheri S. Roman, which methodically works its way through several complex issues to arrive at a total affirmance of Judge Poulos’s decision from March 2015, which not only upheld the co-parent’s standing to seek visitation but also rejected the birth mother’s attempt to institute a paternity action against the sperm donor for both children. Justice Roman’s opinion refers to the parties as Kelly S. and Farah M., but an article about the decision published in Newsday on April 9 identifies them as Kelly Steagall and Farah Martin.

According to the decision, Kelly and Farah began their relationship around March 2000 and became registered domestic partners in California in January 2004. Shortly afterwards they asked a close friend, Andrew S., to donate sperm so they could have a child together.  Kelly became pregnant and bore their first child, whom Farah legally adopted.  That child is not a subject of this lawsuit.

Kelly and Farah decided to have another child, and Andrew again donated sperm. This time Farah became pregnant, giving birth in March 2007 to Z.S.  Kelly was listed as a parent on the birth certificate and the child’s legal surname is Steagall.

After the California Supreme Court ruled for marriage equality in 2008, Kelly and Farah decided to get married, which they did that August. A few months later the voters approved Proposition 8, ending new same-sex marriages in California until it was declared unconstitutional several years later.  In the meantime, however, the California Supreme Court ruled in 2009 that same-sex marriages performed prior to the passage of Prop 8 remained valid.  Kelly and Farah decided to have a third child and Andrew again donated sperm so that Farah could become pregnant.  Their third child, E.S., was born in April 2009.  Kelly was again listed on the birth certificate as a parent, and E.S. received Kelly’s surname.

In 2012 the family relocated to New York State, but Kelly and Farah soon split up and Kelly moved to Arizona in the summer of 2013. The children remained in New York with Farah.  As diplomatic relations between the women were poor, Kelly filed a visitation petition in the Suffolk County Family Court, seeking visitation with Z.S. and E.S.  She alleged that the women were legally married in California and Kelly was a legal parent of the two children, whom she had helped to raise until the parties split up.

Farah moved to dismiss the case, arguing that Kelly lacked standing under New York law to seek visitation, invoking the old New York precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), under which same-sex co-parents were deemed to be “legal strangers” to their children. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition.  Although Andrew had never sought to establish his paternity, he was a close friend of the women and had formed a loving relationship with the children and they with him.  Farah evidently hoped that if the court declared Andrew their legal father, that would cut off Kelly’s claim, because New York does not recognize that a child can have more than two legal parents at the same time.

Farah argued in opposition to Kelley’s standing that Z.S. was born before the women were married, and that Kelly should not be deemed their parent because the insemination did not follow the prescribed route under either California or New York donor insemination statutes, which specify the involvement of a doctor in performing the insemination and a written consent from the birth mother’s spouse in order to raise a presumption of parental status for the spouse. Both of these children were conceived through insemination at home without the aid of a physician.

LGBT family law has advanced so significantly in both California and New York since the turn of the century that Farah’s arguments clearly lacked merit. Same-sex marriage is legal in both states, and New York’s Marriage Equality Law, enacted in 2011, makes clear that same-sex and different-sex marriages are to be treated the same, a point driven home as a matter of constitutional rights by the U.S. Supreme Court’s 2015 Obergefell decision.

New York courts have several times used the doctrine of “comity” to rule that somebody who is a parent of a child under the law of another state will be recognized as their parent in New York, despite the precedent of the Alison D. case. Under California law, when a registered domestic partner gives birth to a child her partner is presumed to be a legal parent of the child and, of course, when a married woman gives birth to a child in California, her legal spouse is presumptively the child’s parent.  The family court found that both of these presumptions applied in this case, and the Appellate Division agreed.

The court rejected Farah’s argument that failure to comply with the statutory donor insemination procedures of the two states would bar Kelly from parental status, pointing out that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. These laws provide that partners of birth mothers who comply with the statutory requirements will obtain parental status, but don’t explicitly provide that failure to comply will forfeit any claim to parental status. The general rule for recognition of parental status in New York for a child born in a sister state is comity unless there is a strong public policy reason for New York to refuse to recognize the status.  California law clearly provides that a child born to a woman who has a registered domestic partner is also the child of the partner, and similarly, of course, that a child born to a married woman is the child of her spouse, and New York courts have extended comity in such situations in the past.  In this case, since Kelly was listed on both birth certificates and the children were given her surname, it is clear that the parties intended that she be a parent of both children when they were born.

The Appellate Division also upheld Judge Poulos’s decision to dismiss Farah’s paternity petition. Poulos determined that Farah filed the “in an attempt to terminate Kelly S.’s parental rights.”  But this would be inconsistent with the ultimate factual findings in the case.  Wrote Justice Roman, “The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state.  Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013.  Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”

Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppague, N.Y. Farah Martin is represented by Sari M. Friedman of Garden City.  Regina M. Stanton was appointed by the court to represent the interest of the children.  Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.”  Steagall told Newsday, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”

The New York Court of Appeals will hear oral argument on June 2, 2016, in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals gave leave to appeal a ruling by the Buffalo-based Appellate Division, 4th Department, Matter of Barone v. Chapman-Cleland, 129 A.D. 3d 1578, 10 N.Y.S.3d 380 (June 19, 2015), which had matter-of-factly applied the Alison D. precedent to hold that a lesbian co-parent lacked standing to seek custody and visitation with her son.  The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, in Debra H. v. Janice R., 14 N.Y.3d 576, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one appointee by former Republican Governor George Pataki on the bench, an almost complete turnover of membership since Alison D. was last affirmed, so it is highly possible that the court granted leave to appeal with a view to overruling the obsolete precedent.

N.Y. 4th Department Rejects Custody & Visitation Petition From Same-Sex Co-Parent

Posted on: June 23rd, 2015 by Art Leonard No Comments

Relying on a quarter-century old N.Y. Court of Appeals precedent under which a same-sex co-parent is considered a “legal stranger” to the child she was raising with her former partner, the Appellate Division, 4th Department has affirmed a decision by Chautauqua County Family Court Judge Judith S. Claire to dismiss a petition for custody and visitation filed by Brooke S. Barone.  The ruling in Barone v. Chapman, 2015 N.Y. App. Div. LEIS 5226, 2015 WL 3797129, was issued on June 19, 2015.

Brooke Barone and Elizabeth Chapman were same-sex partners and Barone had been co-parent of Chapman’s son.  They did not marry and Barone never adopted the child.  After they ceased to be partners Barone filed this petition seeking to have the Family Court determine custody and visitation issues.  The court appointed R. Thomas Rankin, an attorney in Jamestown, to represent the interest of the child.  Barone represented herself in the proceeding.

Chapman filed a motion to dismiss the petition, arguing that Barone did not have standing to seek custody or visitation because she had no legal relationship to the child.  Rankin opposed the motion on behalf of the child, arguing that the child’s best interests should be “paramount” over the legal formalities, and that “the standing accorded to parents should extend to those who have a recognized and operative parent-child relationship, regardless of their sexual orientation.”  He further argued that the court should use the doctrine of equitable estoppel, arguing that a legal parent who has fostered and encouraged her unmarried partner to form a relationship with her child should be forbidden by the court to deny the reality of that relationship by raising an objection to standing.  Judge Claire, finding herself bound by New York precedents, dismissed the petition.

The Appellate Division was equally dismissive of Rankin’s argument.  “Those contentions are without merit,” it wrote, quoting from an Appellate Division ruling that “the Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some matter of control over the child with the parent’s consent.”  The court noted earlier cases involving same-sex couples, in which the Court of Appeals had stated that “parentage under New York law derives from biology or adoption” and the Court of Appeals’ 1991 ruling, Alison D. v. Virginia M., had created a “bright-line test” under which a person who was neither the biological or adoptive parent of a child is considered a legal stranger without standing to seeking custody or visitation.  A few courts have departed from that more recently in the context of married same-sex couples, finding that when a married woman bears a child, her spouse should be presumed to be the child’s legal parent, but the Court of Appeals hasn’t yet ruled on such a case.

Concluded the Appellate Division panel, “We reiterate that, as the Court of Appeals unequivocally stated, ‘any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent.’  Finally, we note that petitioner ‘failed to sufficiently allege any extraordinary circumstances to establish her standing to seek custody’ as a nonbiological, nonadoptive parent.”  The Court of Appeals has recognized that such special circumstances might justify bending the rules, but in the Alison D. case and subsequent cases relying upon it, the court have found that same-sex couples raising a child together do not automatically qualify under the “extraordinary circumstances” rule.

After Alison D. was decided, the Court of Appeals in a late case construed the Adoption Law to allow same-sex partners to adopt child they were co-parenting without terminating the parental rights of the child’s legal parent, providing a clear path for same-sex partners to avoid this result.  However, in the absence of such an adoption, the courts have adhered to the “legal stranger” rule, and the legislature has yet to modify the statutes on parental standing to take account of non-traditional families in New York.

New York Appellate Division Finds Lesbian Birth Mother “Judicially Estopped” From Denying Former Partner’s Parental Status

Posted on: December 31st, 2014 by Art Leonard No Comments

A unanimous panel of the N.Y. Appellate Division, 2nd Department, ruled on December 24 that a birth mother who successfully sued her former same-sex partner for child support was “judicially estopped” from arguing that the partner lacked standing to seek visitation rights with the child.  Arriaga v. Dukoff, 2014 WL 7332764.

Estrellita Arriaga and Jennifer Dukoff lived together in a romantic relationship beginning in December 2003 and registered as domestic partners in New York City in 2007.  They decided to have a child together and Dukoff became pregnant with sperm from an anonymous donor, giving birth to their daughter in November 2008.  The women shared parental responsibilities, but Arriaga never legally adopted the child.  Their relationship ended in May 2012, and Arriaga moved out in September of that year, when the child was almost four years old.  Arriaga continued to visit with the child several days a week.

In October 2012, Dukoff filed a petition in the Family Court seeking child support from Arriaga.  In the petition, she described Arriaga as “a parent to the child” who was “chargeable with the support of the child.”  While the support proceeding was pending, Arriaga filed her own lawsuit against Dukoff, seeking custody or visitation with the child.  After the Family Court issued an order on January 16, 2013, requiring Arriaga to pay child support, she amended her petition, pointing out that the Family Court had adjudicated her as a parent of the child, and thus she was entitled to seek custody and/or visitation as an adjudicated parent.  Dukoff moved to dismiss Arriaga’s petition, arguing that under the N.Y. Court of Appeals precedents of Alison D. v. Virginia M., 77 N.Y.2d 651, and Debra H. v. Janice R., 14 N.Y.3d 576, which had reaffirmed the %Alison D.% ruling, Arriaga was a “legal stranger” to the child who did not have standing under New York law to seek custody or visitation.

Suffolk County Family Court Judge Theresa Whelan denied Dukoff’s motion to dismiss, finding that the prior adjudication of Arriaga’s parental status in the child support proceeding was binding in this later proceeding under the doctrine of judicial estoppel.  Once an issue has been adjudicated in favor of a party, judicial estoppel precludes that party from asserting a contrary view in a later proceeding.  When it was in her financial interest for the court to consider Arriaga a mother with support responsibilities, Dukoff argued in favor of Arriaga’s parental status; she could not now turn around and deny that status when it was in her interest to do so in defending against a possible custody or visitation order.

The Appellate Division panel consisting of Justices Reinaldo E. Rivera, Sheri S. Roman, Colleen D. Duffy, and Betsy Barros issued a unanimous decision not attributed to any of the individual judges, which means it was most likely drafted by a court attorney and approved collectively by the panel.  The decision affirms Judge Whelan’s order awarding visitation rights to Arriaga.

The court noted that in the Debra H. case, while reaffirming Alison D. the Court of Appeals had found that a lesbian co-parent who was a Vermont Civil Union partner of the birth mother at the time the child was born would be recognized as a parent by a New York Court as a matter of comity to Vermont law.  In that case, the Court of Appeals found that recognizing Debra H. as a parent “did not conflict with the public policy of New York and would not ‘undermine the certainty that %Alison D.% promises biological and adoptive parents and their children,’ since ‘whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption.  And both civil union and adoption require the biological or adoptive parent’s legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish %de facto% or functional parentage.”  In other words, the Appellate Division panel found that the concerns animating the %Alison D.% decision were “not implicated in the present case,” since the  judge would not have to hold a hearing or make any sort of factual investigation to determine whether Arriaga should be deemed a parent, as that decision had already been made in the support proceeding.  Furthermore, the court pointed out, that support award was made at the request of Dukoff, who “was the party who sought to have Arriaga adjudicated a parent.”

Although the Court of Appeals has rejected the use of “equitable estoppel” to find that a same-sex partner is a parent, the Appellate Division pointed out that this use of the doctrine of judicial estoppel “differs from establishing parentage by equitable estoppel.”  Dukoff tried to argue that Arriaga should be precluded by judicial estoppel from asserting her parentage in this proceeding when she had taken the position in the support proceeding that her lack of parental rights under New York law precluded the court from requiring her to pay child support.  The Appellate Division found that “the doctrine of judicial estoppel is not applicable to Arriaga because she did not obtain a favorable judgment in the support proceeding.”  Only a party who has argued a point successfully in one proceeding is bound by that ruling in a subsequent proceeding under the doctrine of judicial estoppel.

During the course of this case, Arriaga dropped her request for custody, seeking only a visitation order, which Judge Whelan had granted.  The Appellate Division affirmed that order.

Jeffrey Trachtman and Andrew Estes of Kramer Levin Naftalis & Frankel LLP (New York City) and Susan G. Mintz of Gervase & Mintz P.C. (Garden City) represented Arriaga, and Margaret Schaefler of Huntington represented Dukoff.  Robert C. Mitchell of Central Islip appeared as counsel representing the interests of the child.

New York Lesbian Co-Parent Custody Claim Precluded under 12-Year-Old Decision

Posted on: October 8th, 2013 by Art Leonard No Comments

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.