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Posts Tagged ‘Brooke S.B. v. Elizabeth A.C.C.’

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.

N.Y. Appellate Division Applies New Precedent to Find Standing for Gay Dad Seeking Custody

Posted on: September 14th, 2016 by Art Leonard No Comments

In what may be the first application of the recent New York Court of Appeals decision, Brooke S.B. v. Elizabeth A.C.C., 2016 N.Y. Slip Op 05903 (August 30, 2016), which adopted a new definition of “parent” for purposes of the state’s Domestic Relations Law so as to account for cases of same-sex couples raising children, the New York Appellate Division, 2nd Department, based in Brooklyn, ruled on September 6 that a gay man who was parenting twin children conceived through in vitro fertilization using his same-sex partner’s sperm, had standing to seek custody of the children after the men split up.  The case, In re Anonymous, 2016 N.Y. App. Div. LEXIS 5833, had an interesting additional wrinkle, in that the plaintiff is the biological uncle of the children, because his sister served as the surrogate for their gestation and birth.  In a separate opinion issued on the same date, 2016 N.Y. App. Div. LEXIS 5834, the court rejected a challenge to the parental standing of the surrogate and upheld the temporary award of visitation to the co-parent while the case was pending.

The two cases consolidated in the Brooke S.B. ruling involved lesbian couples who had their children through donor insemination of one of the partners.  This new ruling extends that case to a situation where the birth mother, a surrogate, is still the legal parent of the children, and the dispute is between the father who donated the sperm used to conceive the children and his former partner, whose sister bore them.

The two men, identified in the court’s opinion by their first names as Joseph P. and Frank G., lived together in New York State from 2009 through February 2014, but did not marry when same-sex marriage became possible in New York.  They wanted to raise children together who would be genetically related to both of them, so Joseph took advantage of a long-standing promise by his sister, Renee, who had her own children, that she would bear children for her brother once he met his “life partner.”  Their understanding was that the two men would be the children’s parents, and that Renee would have a continuing role in the lives of any children resulting from this process.

The three adults executed a written surrogacy agreement in which Renee agreed to become pregnant using Frank’s sperm and to surrender her rights as a biological mother so that Joseph could adopt the resulting child or children.  They used an in vitro fertilization process (“test tube babies”), in which it is customary to implant more than one fertilized egg to ensure a successful conception.  Renee bore fraternal twins, a boy and a girl, in February 2010.  It is likely that Frank and Renee were listed on the twins’ birth certificates as the parents, but the court’s opinion does not mention this subject.

For the first four years after Renee gave birth, Joseph and Frank raised the children together, sharing parental rights and responsibilities, and the children regarded both of them as their parents.  They called Joseph “dada” and Frank “dad.”  The court’s opinion doesn’t say what they called Renee, but it does say that she frequently saw them.

Joseph and Frank separated early in 2014.  The children continued to live with Frank, but Joseph visited and cared for them “daily,” according to the court’s opinion, until May 2014.   Then Frank suddenly cut off contact between Joseph or Renee and the children.  In December 2014, Frank moved to Florida with the children, without giving any notice to Joseph or Renee, and without seeking permission from the court.  Although Renee had agreed in the surrogacy agreement to give up any claim of parental rights in order for Joseph to be able to adopt the children, they had never taken that step of adoption, so her parental rights had not been legally terminated.  Frank did not seek court permission to remove the children from the state, which would normally be required since he did not have permission from Renee, their legal mother.

After Frank’s move, Renee filed an action in the Family Court seeking custody of the children as their biological mother, and Joseph filed an action petitioning to be appointed their legal guardian.  Since the New York Court of Appeals had then recently reaffirmed its 1991 ruling, Alison D. v. Virginia M., 77 N.Y.2d 651, under which a person in Joseph’s position would not have standing to seek custody, a guardianship appointment would be the next best thing.  However, in June 2015 Joseph reconsidered his position, withdrew the guardianship petition, and filed his own action seeking custody as a de facto parent.

Frank then filed a motion to throw out Joseph’s case, relying on Alison D.’s definition of “parent” as being limited to a biological or adoptive parent, but Orange County Family Court Judge Lori Currier Woods denied the motion, and Frank appealed.  The appellate court’s opinion does not describe Judge Woods’ reasoning for denying Frank’s motion.

In its unanimous September 6 ruling, the panel of Justices L. Priscilla Hall, Jeffrey A. Cohen, Robert J. Miller and Betsy Barros noted that while this appeal was pending, the Court of Appeals had decided Brooke S.B. v. Elizabeth A.C.C., overruling the Alison D. decision and adopting a new definition of “parent.”  The Court of Appeals said that the old definition had “become unworkable when applied to increasingly varied familial relationships.”  Under the new definition, a partner of a biological parent will have standing to seek custody if the partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” 

In this case, testimony about the verbal agreement between the men was bolstered by the written surrogacy agreement between the men and Renee.  This is ironic, since under New York Law the surrogacy agreement is itself against public policy and unenforceable in court.  For that very reason, Frank cannot rely on the Surrogacy Agreement in defending the separate custody case brought against him by Renee, since a statutory provision says that a surrogacy agreement cannot be considered by the court in a custody proceeding involving the surrogate mother.  

The Appellate Division found that “Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents.”  The court also pointed out that the men “equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents.”  Thus, a straightforward application of the new precedent gave Joseph standing to seek custody.

Frank had also argued, as part of a belated attempt to get permission from the Family Court to relocate the children to Florida, that Renee’s parent standing was terminated due to her entry into a surrogacy agreement with the two men. Rejecting this argument, the court said that such rights were not terminated.  “Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable,” wrote the court.  As such, a surrogacy contract has no legal effect.  “Moreover,” the court observed, “Domestic Relations Law Sec. 124(1) expressly states that ‘the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.’”  The court also noted that a hearing would be required to determine whether it was in the best interest of the children to allow Frank to relocate them to Florida.  The court also affirmed the Family Court’s award to Joseph of specified visitation with the children while the case is pending.

This ruling does not mean that Joseph will automatically get custody.  The case goes back to the Family Court for a determination whether an award of custody to Joseph is in the best interest of the children.  Furthermore, although Renee’s custody petition is mentioned in the opinion, the appellate court gives no indication what effect its ruling will have on her custody claim.  However, because New York law does not provide that a child can simultaneously have three legal parents, the Family Court will have to take account of Renee’s continued legal status as the children’s parent in making a determination whether to award custody to Joseph, and whether that would require terminating the parental status of either Renee or Frank.  This is a complicated business, and the New York State legislature needs to modernize our Domestic Relations Law to sort through the intricacies and provide clear guidance to the courts when dealing with “non-traditional” families.  Left to their own devices without such guidance, it is difficult to predict what the courts will do.

Kathleen L. Bloom of New Windsor represents Joseph.  Michael D. Meth and Bianca Formisano of Chester represent Frank.  Gloria Marchetti-Bruck of Mount Kisco was appointed by the court to represent the interest of the children.  Since Renee was not involved in this appeal, the opinion does not identify her counsel.