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Can Three Parents Make a Family in New York?

Posted on: April 17th, 2018 by Art Leonard No Comments

 

                In an opinion issued on April 10, New York Family Court Judge Carol Goldstein confronted the question whether there can be a third parent – an adult with legal rights to seek custody and visitation of a child who already has two legal, biological parents – in the context of a married gay male couple and the woman who agreed to have a child with them and share parenting.  She concluded that the “non-biological father” in this triad has “standing” under New York’s Domestic Relations Law to seek custody and visitation of the child, but not necessarily to be designated as a “legal parent.”  The case is Matter of David S. and Raymond T. v. Samantha G., 2018 N.Y. Misc. LEXIS 1249, 2018 N.Y. Slip Op 28110 (N.Y. County Family Court, April 10, 2018).

 

                As usual in contested child custody cases, the judge assigned pseudonyms to the parties and the child in order to protect their privacy, naming the men David S. and Raymond T., the woman Samantha G., and their child Matthew Z. S.-G..  Throughout the opinion, however, she refers to the adults as Mr. S., Mr. T., and Ms. G.

 

                The adults were all friends.  “Over brunch in May 2016, the three friends discussed how each wished to be a parent and devised a plan whereby a child would be conceived and raised by the three parties in a tri-parent arrangement,” wrote Judge Goldstein.  “While the parties agreed that the mother would continue to live in New York City and the men would continue to reside together in Jersey City, the parties agreed that they would considered themselves to be a ‘family.’”  They carried out this plan, but never reached agreement on a signed written document.

 

                Over a period of eight days, Mr. S. and Mr. T. “alternated the daily delivery of sperm to Ms. G for artificial insemination.  On or about Labor Day weekend, 2016, Ms. G. announced that she was pregnant.  The three parties publicized the impending birth on social media with a picture of all three parties dress in T-shirts.  Misters S. and T.’s shirt each said, ‘This guy is going to be a daddy’ and Ms. G’s shirt said, ‘This girl is going to be a mama.’”

 

                They all participated fully in preparing for the arrival of the child, attending a natural childbirth course, creating a joint savings account for the child (to which Mr. T. had, as of the time of the court’s hearing in this case, contributed 50% of the funds), agreeing on a pediatrician and making medical decisions jointly, and planned that the child would be delivered with the assistance of a midwife at the men’s New Jersey home.  This occurred on May 6, 2017. 

 

It was not until after the child was born that a “private genetic marker test” determined that Mr. S.’s sperm initiated the pregnancy.  He signed a New Jersey acknowledgment of paternity on May 11.  They named the child using names of significance from all three families.  After Matthew was born, the entire family spent a week at the men’s home, after which Ms. G returned with Matthew to her home in New York County (Manhattan).  Matthew, still an infant, lives mainly with his mother, although the men have had regular parenting time and last summer the parties vacationed together in the Catskills.

 

Because infant Matthew was nursing on demand, overnight visits with the men had not been scheduled, but were supposed to start during April.  “When speaking to Matthew,” wrote the judge, “all parties refer to Ms. G. as ‘Momma,’ Mr. S. as ‘Daddy’ and Mr. T. as ‘Papai,’ which is Portuguese for father.”  All three parents were present at the hospital when Matthew had hernia surgery at two months.

 

Mr. T. and Ms. G. have a contract with a literary agent to write a book about their joint parenting venture.  In recognition of Mr. T’s profession of meteorology, the provisional title is ‘Forecasting a Family.’”

 

However, wrote Judge Goldstein, “Issues arose between the two men and Ms. G with respect to the parenting of Matthew as well as to the extent of parental access by Misters S. and T.  The relationship among the parties became strained.”  Misters S. and T. filed a joint petition in the Family Court in New York County on November 12, seeking “legal custody and shared parenting time” with Matthew by court order.  On December 6, Ms. G filed a “cross-petition” seeking sole legal custody of Matthew, with the men being accorded “reasonable visitation.”  None of the parties was seeking an “order of paternity or parentage” in their initial filings with the court. 

 

The court asked the parties to submit memoranda of law about the parenting issues, and how the N.Y. Court of Appeals’ Brooke S.B. decision from 2016 might apply.  In Brooke S.B., the court overturned a 25-year precedent and ruled that a non-biological parent could have standing to seek custody and visitation under certain circumstances.  That case involved a custody and visitation dispute of a lesbian couple over a child born to one of them through donor insemination.

 

The main issue of dispute between these parties, which came out in their briefs, is about Mr. T.’s legal status toward the child.  Under New York law, the husband of a woman who gives birth is presumed to be the child’s father, but the legal status of a man who is married to another man whose sperm is used to conceive a child with a woman to whom he is not married presents new, unresolved legal issues.  Ms. G  agrees that Mr. T. should have standing to seek visitation, but she argued “strenuously” that “the right to seek custody and visitation as a ‘parent’ under the Domestic Relations Law does not automatically bestow parentage on the non-biological party” and asked that the court not declare Mr. T. to be a third legal parent.  On the other hand, the men argued that not only should Mr. T. have standing to seek custody and visitation as a ‘parent,’ but that the court should also declare him to be a third legal parent of Matthew.

 

Judge Goldstein found that under the circumstances of this case, with an emphasis on the understanding and agreement of the parties when they devised their plan to have and raise a child together, it was clear that Mr. T. has standing to seek custody and visitation in line with the Brooke S.B. decision.  “In making this decision,” she wrote, “this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.” 

 

She identified as the “fundamental principle” of the Court of Appeals precedent that the state’s domestic relations law “must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure.  The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.” 

The judge noted the likelihood that this kind of situation will recur, pointing out the differences between the use of anonymous sperm donors where no parental role is contemplated for the sperm donor, and the situation where a known donor is involved “where the parties agree that the provider of the egg or sperm will be a parent.”

 

She also noted recent New York decisions that had denied standing or parental status to sperm donors, where all these circumstances were not present, particularly where lesbian couples obtained sperm from a known donor but there was no understanding or agreement that the donor would be considered a parent of the child.  These situations are less difficult to analyze from a legal perspective if the parties negotiate and sign carefully worded written agreements memorializing their understanding of their rights and responsibilities, although such documents are not binding on a court, whose main task under the domestic relations statutes is to make such decisions in the best interest of the child.

 

The court found that the usual “presumption of legitimacy” used to determine parental standing in donor insemination cases was not relevant in considering the status of Mr. T., even though Mister S. and Mr. T. are married to each other.  “This is because the presumption that Matthew is the legitimate child of the married couple, Misters S. and T., would indisputably be rebutted by evidence that all three parties agreed that Matthew would be raised in a tri-parent arrangement and that Ms. G., the biological mother, would be a parent to Matthew.”  In other words, this is not a gestational surrogacy case, where the woman’s only role was to produce the child and agree to forego parental rights.

 

However, noting that the men’s original filing with the court did not seek an order of “parentage” on behalf of Mr. T, the judge declined to issue such an order.  “Moreover,” she wrote, “there is no need for the issue of parentage to be addressed since pursuant to Brooke S.B., Mr. T. may seek custody and visitation as a ‘parent’ under DRL section 70(a) without a determination that he is a legal parent.  If, in the future, a proper application for a declaration of parentage is made and there is a need for a determination of parentage, for instance, to rule on a request for child support, the court may address this issue.  This court, however, notes that there is not currently any New York statute which grants legal parentage to three parties, nor is there any New York case law precedent for such a determination.”

 

So a child can have three parents, or at least three adults with standing to seek custody and visitation, while at the same time having only two “legal parents,” in New York.  Unfortunately, New York’s Domestic Relations Law has not been revised by the legislature to take account of the sorts of “non-traditional” family structures that have emerged over the past half century as assisted reproductive technology has become relatively easy for people to use without the assistance of medical specialists and a diversity of family structures have arisen through social evolution.

 

This case will now proceed to consideration by the judge about what kind of custody and visitation arrangement would be in Matthew’s best interest, to embody in a formal order that would protect Mr. T’s rights as a non-biological parent.  While having determined that Mr. T has standing to seek custody and visitation, the judge’s opinion expresses no view as to the viability of tri-partite custody, without actually ruling it out as a possibility. 

 

Misters S. and T. are represented by Patricia A. Fersch.  Ms. G is represented by Alyssa Eisner, or Sager Gellerman Eisner LLC.

 

Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.