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N.Y. Appellate Division Rules against Sperm Donor Seeking Paternity Determination and Custody

Posted on: January 25th, 2018 by Art Leonard No Comments


In a case showing the pressing need for revision and updating of New York’s Domestic Relations Law to reflect modern-day family realities and effectively take account of the existence of the N.Y. Marriage Equality Act, the Appellate Division, 3rd Department, ruled on January 25 that a sperm donor to a lesbian married couple was “equitably estopped” from seeking a paternity determination regarding the child conceived using his sperm, and countermanded a ruling by Chemung County Family Court Judge Mary Tarantelli that genetic testing be done to confirm the plaintiff’s biological fatherhood.  Christopher YY v. Jessica ZZ and Nichole ZZ, 2018 WL 541768.  There was no dispute between the parties that the child in question was conceived using his sperm.

Jessica and Nichole, the respondents in this case, were married before Jessica gave birth to their child in August 2014. Justice Robert C. Mulvey described the circumstances of the child’s conception: “It is undisputed that the child was conceived, on the second attempt, through an informal artificial insemination process performed in respondents’ home using sperm donated by petitioner.  The parties, who had known one another for a short time through family, had discussed respondents’ desire to have a child together, and petitioner volunteered to donate his sperm for this purpose.  The parties agree that petitioner, with his partner present, knowingly provided his sperm to assist respondents in having a child, and that the wife performed the insemination.  Prior to the insemination, the parties had entered into a written agreement drafted by petitioner that was signed by respondents and petitioner in the presence of his partner.  Pursuant to that written agreement, which was entered into without formalities or the benefit of legal advice, petitioner volunteered to donate his sperm so that respondents could have a child together, expressly waived any claims to paternity with regard to any child conceived from his donated sperm and further waived any right to custody or visitation, and respondents, in turn, waived any claim for child support from petitioner.”  The court noted that Christopher, the petitioner, denied the existence of such a written agreement, but the court found that the testimony by respondents and petitioner’s partner provided a basis for the Family Court’s determination that it did exist.

After the child was born, the parties “disagreed on petitioner’s access to the child, and his partner subsequently admitted in sworn testimony that she had destroyed the only copy of that agreement,” but the court decided that the agreement was only being considered for the purpose of determining the parties’ “understanding, intent and expectations at the time that petitioner donated his sperm and the wife impregnated the mother,” and not as a legally enforceable contract, so its destruction was not critical in this case. The court stated that the respondents lived together with the child as a family, and the petitioner did not see the child until she was one or two months old.

Family Court Judge Tarantelli rejected the mother’s motion to dismiss the proceeding, and, over opposition, granted the petitioner’s request for genetic testing, but agreed to stay the testing order while the mother appealed the ruling. The Appellate Division allowed a direct appeal of the Family Court’s order.

Justice Mulvey reviewed the basic family law principles under which the spouse of a woman who bears a child is presumed to be the child’s legal parent, the child being characterized as a “product of the marriage.” The statutes provide that this presumption can be rebutted through a proceeding establishing that another man than the mother’s husband is the biological father of the child, so that the child is not, literally speaking, a “product of the marriage.”   But, he pointed out, the tests in our antiquated statutes don’t really account for the modern phenomenon of same-sex couples having children through donor insemination, as the donor insemination statute focuses on the legal parental status of a husband who gives written permission for his wife to receive a sperm donation from another man.

“Application of existing case law involving different-gender spouses,” Mulvey wrote, “addressing whether the presumption has been rebutted, to a child born to a same-gender married couple is inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically ‘the product of the marriage.’ . . . If the presumption of legitimacy turns primarily upon biology, as some earlier cases indicate, rather than legal status, it may be automatically rebutted in cases involving same-gender married parents.  This result would seem to conflict with this state’s ‘strong policy in favor of legitimacy,’ which has been described as ‘one of the strongest and most persuasive known to the law.’  Summarily extinguishing the presumption of legitimacy for children born to same-gender married parents would seem to violate the dictates of the Marriage Equality Act,” noting that law’s requirement that married same-sex couples have the same “legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage” as different-sex couples have.  “As the common-law and statutory presumptions of legitimacy predate the Marriage Equality Act,” Mulvey commented, “they will need to be reconsidered.”

While pointing out that “a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, we believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents.” The court decided, biology aside, that the petition in this case has not “established, by clear and convincing evidence, that the child is not entitled to the legal status as ‘the product of the marriage,” and thus the presumption is not rebutted and, even if it was because there was no disagreement that petitioner was the only sperm donor, “we find, for reasons to be explained, that the doctrine of equitable estoppel applies to the circumstances here and that it is not in the child’s best interests to grant petitioner’s request for a paternity test.”

The court rejected any argument that because the respondents had proceeded informally and not complied with statutory provisions governing donor insemination in New York, they were precluded from achieving legal recognition for their family. Actually, in past cases the New York courts have not formalistically insisted that parental presumptions don’t apply if the parties failed to follow the donor insemination law to the letter.  As to the application of equitable estoppel to block Christopher’s paternity action, the court cited earlier cases holding that the doctrine “is a defense in a paternity proceeding which, among other applications, precludes a man from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another [person].”  This is done to “protect the status interests of a child in an already recognized and operative parent-child relationship.”  In other words, the court is not going to let Christopher interfere in the established relationship that Nichole has with the child her wife bore.

Relating this back to the facts of the case, Mulvey found that the conduct of the parties support blocking Christopher from the paternity action. “He was not involved in the child’s prenatal care or present at her birth, “wrote Mulvey,” did not know her birth date, never attended doctor appointments and did not see her for at least one or two months after her birth.  He was employed, but never paid child support, and provided no financial support…  By his own admission, he donated sperm as a ‘humanitarian’ gesture, to give respondents ‘the gift of life’ and expected only ‘contact’ with the child as a ‘godparent’ by providing her mothers with ‘a break’ or ‘help.’  He never signed an acknowledgement of paternity or asked to do so, and no aspect of his testimony or conduct supports the conclusion that he donated sperm with the expectation that he would have a parental role of any kind in the child’s life, and he never had or attempted to assert such a role.”  On the other hand, the testimony fully supported Nichole’s role as a mother to the child.  The court also pointed out that Christopher didn’t file his petition until the child was seven months old, and was “in an already recognized and operative parent-child relationship” with her birth mother, Jessica, and with her other mother, Nichole.

The court concluded that authorizing genetic testing and allowing the case to proceed was not in the child’s best interest, in light of the existing relationship of the child and her parents.

The court related that a new attorney had been appointed to represent the child in this appeal. She had favored the genetic testing, mainly because of events that have occurred since the Family Court hearing. It seems that the child has been in foster care, and there are neglect petitions pending against the mothers, although the lawyers appearing at the hearing in the Appellate Division did not know the details.  “However,” wrote Mulvey, “we find that the subsequent events, on which we take no position, do not alter our conclusion that respondents established at the [Family Court] hearing that petitioner should be equitably estopped from asserting paternity under the circumstances known to the Family Court at the time of the hearing,” and allowing new matters to be raised at this point “should not be permitted.  Doing so would continue to invite challenges to the then-established family unit into which the child was born, creating instability and uncertainty.”

Jessica is represented by Ouida F. Binnie-Francis of Elmira, N.Y., and Nicholde is represented by Lisa A. Natoli of Norwich. The child is represented by Michelle E. Stone of Vestal.  Christopher is represented by Pamela B. Bleiwas of Ithaca.

Maryland Intermediate Appellate Court Finds State Precedent Precludes Applying “Best Interest of the Child” Standard to Visitation Dispute of Divorcing Lesbian Couple

Posted on: August 27th, 2015 by Art Leonard No Comments

Due to the oddities of timing during a transitional period in the legal landscape, the Maryland Court of Special Appeals found in the context of a divorcing lesbian couple that the non-biological parent’s claim for visitation with the child conceived through donor insemination at a time when the women could not marry in their domicile of the District of Columbia must be dismissed on standing grounds. It seems that by a fluke of timing the women could have married in D.C. before the child was born, but did not marry until shortly after his birth, and this turned out to be determinative under Maryland law. Conover v. Conover, 2015 Md. App. LEXIS 107 (Md. Ct. Spec. App., Aug. 26, 2015). The Court of Special Appeals (an intermediate appellate court) rejected equitable claims, found that potential constitutional claims on behalf of the non-biological parent had not been properly raised or preserved at trial, and, in the opinion for the court by Judge Robert A. Zarnoch, characterized this as a “sad case” since “the present state of Maryland case law leaves us no choice.” In a concurring opinion, Judge Douglas R.M. Nazarian wrote, “I agree with the majority that this case is sad, but I would add the adjective ‘frustrating,’” and he wrote at length about how the current legal parenthood regime in Maryland was inadequate to meet the situation of unmarried same-sex parents.

Maryland’s legislature adopted a law authorizing same-sex marriage, but only after the underlying events in this case occurred. There is no question that Maryland recognizes the District of Columbia marriage of Michelle and Brittany Conover. The question is whether, in the context of a divorce proceeding, Michelle has the standing of a parent seeking visitation, or rather should be treated as an unrelated third party. The court found that existing Maryland precedents, not altered by passage of the Marriage Act, dictates third-party treatment.

The women’s relationship began in 2002, with some “breaks.” They discussed having a child and Brittany became pregnant through donor insemination in 2009, at a time when marriage licenses for same-sex couples were available in three states but not in D.C., where they were then living. In March 2010, D.C. began issuing marriage licenses to same-sex couples under a newly-enacted municipal ordinance. On April 4, 2010, Brittany gave birth to their son, Jaxon William Lee Eckel Conover. (The name incorporates former surnames of the parents’ families.) The birth certificate listed Brittany as the mother and left blank the space for father. On September 28, 2010, the women married in D.C. and subsequently took a common surname, Conover. They subsequently moved to Maryland, which did not legislate for marriage until a few years later, although Maryland was, by virtue of an Attorney General opinion, recognizing same-sex marriages from D.C.

The marriage didn’t last very long. The women separated in September 2011, but Michelle continued to visit Jaxon regularly until Brittany prevented further contact in July 2012. Brittany filed a pro se divorce action in Maryland on February 8, 2013, which did not mention Jaxon. Michelle, also proceeding %pro se%, answered on February 19, asserting a claim for visitation rights, and then on March 14 filed a counterclaim for divorce pro se, again raising the issue of visitation. At the subsequent hearing on April 30, Michelle was represented by counsel but Brittany was not. Brittany claimed Michelle did not have parental standing to seek visitation, which Brittany opposed. Michelle rested her claim on a Maryland statute governing paternity claims when a child was born before the parents married, asserting that the court should construe the statute to apply to spouses of either sex, not just fathers. The statute, Sec. 1-208(b), provides four ways a man who was not married to the child’s mother at birth could establish parental status. If one gives it a gender-neutral reading (as California has done in similar situations), Michelle could assert parental status under three of the four methods. She also asserted equitable claims, such as de facto parenthood and estoppel.

Circuit Judge Daniel P. Dwyer issued a decision on July 4, 2013, finding that Michelle was not a legal parent of Jaxon. As a “third party,” she could only seek visitation if she could show that Brittany was unfit as a parent or that there were extraordinary circumstances justifying the court in letting Michelle seek visitation. The court found that neither of those requirements were met, and rejected her visitation claim, and Michelle appealed.

First addressing constitutional issues, Judge Zarnoch observed that although “nearly half of her brief” was devoted to attacking Maryland’s paternity and legitimacy statutes as unconstitutionally discriminating against women and gay people, Michelle had not raised these arguments before Judge Dwyer, Brittany appearing pro se had not been called to respond to them, and the Attorney General had not weighed in. Zarnoch, quoting another judge in an old case, said that “it would be foolhardy in the extreme to undertake the resolution of such complex constitutional questions” on this sort of record. However, Judge Zarnoch observed, Brittany benefited in this dispute by the well-developed Maryland and federal case law on the constitutional right of fit parents to determine who would associated with their children. As Michelle did not challenge Brittany’s fitness as a parent, Brittany had a right to veto Michelle’s demand for visitation, as the appellate court agreed with the trial judge that under Maryland law Michelle is a “third party,” even though she had helped to plan for Jaxon’s conception and had married Brittany shortly after the child was born.

Zarnoch reviewed Maryland case law, showing that the state’s highest court, the Court of Appeals, had rejected the concept of de facto parenthood in this context, observing that under Maryland law, “A non-biological, non-adoptive spouse who meets one, two or even three tests under ET Sec. 1-208(b) [the paternity statute] is still a ‘third party’ for child access purposes.” The court agreed that the paternity statute was enacted for the purpose of imposing duties on unmarried fathers, not for the purpose of establishing custody or visitation rights on such individuals. If Brittany was seeking a child support order against Michelle, it is possible on these facts that such an order might be forthcoming, but the statutes could not be construed in the court’s view to entitle her to be considered as a legal parent for custody or visitation purposes. “Moreover,” wrote Zarnoch, “there is no gender discrimination or sexual orientation discrimination because all non-biological, non-adoptive parents face the same hurdle, no matter what sex or sexual orientation they are.”

Zarnoch also contended, “The couple could have married before Jaxon was born, but did not. The circuit court did not err in failing to accord weight to the prohibition on same-sex marriage that once existed.” This is because D.C. began allowing same-sex marriages while Brittany was pregnant. Had the women quickly taken advantage of this, they would have been married when Jaxon was born and Michelle would have parental standing under the general principle, followed in Maryland, that the spouse of a woman who gives birth is a legal parent of the offspring. Even before D.C. was performing same-sex marriages, the court pointed out, Michelle and Brittany could have gone to one of the other three states that authorized same-sex marriages (all without residency requirements) and gotten married before conceiving Jaxon. They also could have had Michelle adopt Jaxon after he was born. (The court noted in passing that as of that time it was not totally clear that Maryland courts would approve second-parent adoptions, but the Court of Appeals had not ruled against them. It would seem that once the couple had married, a court would likely have treated this as a step-parent adoption and no more controversial, but that is just hindsight from today’s perspective.) There was evidence that the women talked about adoption, but the expense of a formal adoption was, in their view, a burdensome and unnecessary expense on top of the expenses of raising Jaxon.

Michelle argued that Brittany should be barred from raising the parental status issue, inasmuch as the women had agreed before the child was conceived that Michelle would be a parent, and that Brittany had said and done various things prior to and after the birth to continue to induce Michelle’s reliance that her parental status would be honored and she did not have to go through a formal adoption procedure to protect her rights. The court was unwilling to go down that path, pointing out that most courts had rejected equitable estoppel or parenthood by estoppel arguments in such cases and that Michelle “had ample time – years, in fact – to pursue the adoption of Jaxon.” (Actually, she had just over a year if one assumes that Brittany would become uncooperative about an adoption after the women had separated, so the court’s characterization may exaggerate Michelle’s window of opportunity for this.)

Michelle’s appellate strategy was focused on persuading the court that she should not be treated as a “third party” and thus should not have to show “exceptional circumstances” to overcome Brittany’s objection to her claim for visitation, and that the trial court should have afforded her an additional hearing to address the “exceptional circumstances” issue if the judge was to decide it. The appellate court was not persuaded, finding that she had an opportunity to introduce evidence on this point. Indeed, her trial lawyer on the record said that the evidence “screamed extraordinary circumstances” and that this was an “alternative argument” for her standing. She had also briefed the issue to the trial judge in a post-hearing memorandum, so Judge Zarnoch found that the trial court could not be faulted for reaching and deciding the issue. Since Michelle had not asked on appeal that the appellate court address the correctness of the trial judge’s conclusion on this point, the court refrained from doing so.

“In conclusion,” wrote Zarnoch, “it must be said that this is a sad case; nor can Michelle’s desire for access to Jaxon be questioned. However, the present state of Maryland case law leaves us no choice. The interplay between the State’s paternity statutes and the marriage, divorce, and child access rights of same-sex couples is aptly characterized as ‘uncharted Maryland waters in an area where the Legislature is better suited to consider the competing legal and societal values. . .,’’ quoting from In re Roberto de B., 399 Md. At 312-13 (dissent).

Although Judge Nazarian agreed with the result, he concurred in a separate opinion bemoaning the failures of Maryland family law, asserting that the “premise” underlying the Court of Appeals’ rejection of the de facto parenthood doctrine “no longer holds, at least with regard to married same-sex couples. If, as Maryland law now provides,” he continued, “a valid marriage between two women (or two men) has the same legal validity and force as a man-woman marriage, courts should analyze the visitation rights of same-sex spouses the same way they analyze the visitation rights of opposite-sex spouses. I acknowledge that there may well be some challenges in adapting our analyses to accommodate the real-life differences in the way children join same-sex families, but it may not be that hard either, and we have to start somewhere.” He concluded that “the historic treatment of same-sex parenthood is no longer up to the task.”

The next step for Michelle may be an attempt to take this to the Court of Appeals and seek reversal of the precedent that bound the intermediate court to rule against her. In a sense this case is presenting a transitional problem in light of the subsequent enactment of a marriage equality law in Maryland, followed by the Supreme Court’s Obergefell decision. But, on the other hand, same-sex couples, in common with many different sex couples, have children while cohabiting but without marrying under varied circumstances, so it is unlikely that the issues in this case will not arise in future cases, even with the option to marry or to adopt available.

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.