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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.