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N.Y. Appellate Division Upholds Vacating Adoption by Father’s New Boyfriend on Petition by Father’s Husband

Posted on: October 3rd, 2017 by Art Leonard No Comments

On September 28, 2017, a unanimous five-judge panel of the N.Y. Appellate Division, First Department, held that New York County Family Court Judge Stewart H. Weinstein had properly granted a motion by Han Ming T., the husband of Marco D., to vacate a May 2016 order that had granted an adoption petition by Carlos A., Marco’s boyfriend, to adopt a child conceived through gestational surrogacy using Marco’s sperm at a time when Marco and Han Ming were subsequently deemed to be married.  Ming, who had initiated a divorce proceeding in Florida in which he sought joint custody of the child, then unaware that the adoption petition had been filed in New York, showed that he was entitled to notice of the adoption petition and respect for his parental rights.  Carlos and Marco had failed to inform the Family Court that the status of the child in question was implicated in an ongoing divorce proceeding, so that court had originally granted the adoption unaware that there was a legal impediment as the consent of Ming was lacking. In re Maria-Irene D., 2017 N.Y. App. Div. LEXIS 6713, 2017 WL 4287334, 2017 N.Y. Slip Op 06716.

Marco and Ming, who are both British citizens, entered a formal civil partnership in the U.K. in 2008, which they converted into a legal marriage in 2015. Under British law, their marriage was treated as retroactive to the date of their civil partnership.  Between those two dates they had relocated to the U.S., living in Florida.  In 2013 they undertook to have a child through gestational surrogacy, a process by which an egg is extracted from a donor, fertilized in a petri dish, and then implanted in a surrogate.  Both men contributed sperm for several in vitro fertilization attempts; the one that “took,” using Marco’s sperm, was implanted in the surrogate.  This process was carried out in Missouri, where the child, who was named after the mothers of both men, was born in September 2014.  A Missouri court then terminated any parental rights of the egg donor and the surrogate and designated Marco, the genetic father, as having “sole and exclusive custody” of the child.  “Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment,” wrote the court.

But evidently the relationship of the men was complicated during that time, because, the court reports, “At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the U.K.” Carlos petitioned the New York County Family Court to adopt the child in January 2016.  The adoption papers “disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco have been caring for the child since her birth.  A home study report stated that Marco and Ming legally separated in 2014 and had no children together.”  That Ming had participated in the surrogacy process and that Marco, Ming and the child lived together as a family thereafter were not disclosed to the Family Court in the adoption proceeding.   Neither did Carlos and Marco disclose to that court prior to the adoption order being granted that Ming had filed a divorce action in Florida in March 2016, seeking joint custody of the child.

The Family Court granted the adoption in May 2016. When Ming learned of this, he filed a motion in the Family Court to vacate the adoption “on the ground that relevant facts had not been disclosed to the court and that he was entitled to notice of the adoption and an opportunity to be heard since he had parental rights.”  Judge Weinstein granted Ming’s motion and vacated the adoption, finding that Carlos and Marco made “material misrepresentations” to the court and that Ming was entitled to notice of the proceeding.  Weinstein did leave open the possibility that depending how the divorce proceedings were resolved in Florida, Carlos might later renew his petition to adopt the child.  Carlos moved for re-argument, but the motion was denied, and Carlos and Marco appealed.

The Appellate Division found that the Family Court “providently exercised its discretion in vacating the adoption.” Since the Marco-Ming marriage was retroactive to 2008 under U.K. law, it would be recognized as such under New York law as a matter of comity.  Which meant that the child, born in 2014, was a child of the marriage, “giving rise to the presumption that the child is the legitimate child of both Marco and Ming.”  The court noted Ming’s allegation that they lived together as a family in Florida, and that “the couple took affirmative steps in the U.K. to establish Ming’s parental rights in accordance with U.K. law.”  The court doesn’t explain this further.  Perhaps it refers to their subsequent 2015 marriage, which had retroactive effect under U.K. law to 2008, thus establishing Ming’s parental status, regardless of the Missouri judgement awarding Marco sole and exclusive custody.  (One has to factor into the mix that in 2014 same-sex couples could not marry in Missouri and their U.K. legal status as civil partners when the child was born would have no recognition under Missouri law, so naturally a Missouri court at that time would not recognize Ming as having any legal relationship to the child.)

“The prevailing law at the time the adoption petition was granted does not compel a different result,” said the court. As far as this court was concerned, as a matter of New York law according comity to the retroactive effect of their U.K. marriage, “Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together.  Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding.  Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016]), Ming’s claim to have standing as a parent is even stronger.”

The court also found the failure by Carlos and Marco to disclose the Florida divorce proceeding to the Family Court to be “another ground to vacate the adoption,” since an adoption petition requires the petitioner to disclose to the court whether the child is the subject of any other legal proceeding affecting his or her custody or status, and Ming had petitioned for joint custody of the child in the Florida proceeding. Carlos and Marco learned of that proceeding a few months after Carlos’s adoption petition was filed, while that petition was still pending before the Family Court, so they had a duty to bring it to the attention of that court.  Instead, they filed a supplemental affidavit claimed that there had been no change in the child’s circumstances “whatsoever” since the filing of the adoption petition.

Ming is represented by Nina E. Rumbold of Rumbold & Seidelman, LLP (Bronxville). Carlos and Marco are represented by Frederick J. Magovern of Magovern & Sclafani, Mineola.  There is no attorney appointed to represent the child’s interest, a point that Carlos and Marco raised in their appeal but as to which the Appellate Division declined to rule.  The court’s opinion does not report on the current status of Ming’s Florida divorce proceeding.  It is possible that Ming and Marco are still legally married, which perhaps explains why Carlos and Marco are not?


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.

New York Trial Court Holds New York Property Acquired During a Vermont Civil Union is Not Subject to Equitable Distribution in New York Dissolution Proceeding

Posted on: October 30th, 2015 by Art Leonard 1 Comment

In a rather complicated opinion, New York Supreme Court Justice Richard A. Dollinger ruled on October 23 that New York property acquired by Deborah O’Reilly-Morshead during her Vermont Civil Union with Christine O’Reilly-Morshead is not subject to equitable distribution under New York law in the current divorce proceeding between the women, who married in Canada after the property was acquired. O’Reilly-Morshead v. O’Reilly-Morshead, 2015 N.Y. Misc. LEXIS 3843, 2015 NY Slip Op 25354 (Supreme Ct., Monroe County).

Deborah and Christine began their relationship in 2001 while living in Indiana, where they had a “union ceremony” with no legal significance. They moved to New York in 2002, Deborah selling a house she owned in Indiana. They went to Vermont in 2003 and contracted a civil union, while continuing to reside in New York. In 2004 Deborah used the proceeds from the sale of her Indiana house and her other resources to buy a house in Rochester, New York, which was recorded in her name only. In 2006, the women ventured up to Canada to marry, continuing to maintain their residence in Rochester. Five years later, Deborah filed a divorce action in Monroe County Supreme Court, seeking equitable distribution of “marital property.” She excluded from that category the house, which she had purchased with her own assets prior to the marriage. Christine countersued for divorce and dissolution of the Vermont Civil Union (calling on the equitable powers of the court for the latter), and contended that the house, purchased %after% the parties contracted their civil union, should be considered property of the civil union subject to distribution under Vermont law, and so should be included as part of the marital property subject to dissolution in the New York proceeding. As the parties could not resolve their dispute about the status of the house, it fell to the court to decide both whether it had the power to dissolve the civil union and also whether it had the authority or power to make an order regarding ownership rights to the house.

Relying on prior court decisions finding that New York Supreme Court justices can dissolve civil unions drawing upon their general equitable powers, Judge Dollinger had no trouble deciding that he could grant Christine’s request to dissolve the civil union, but dealing with the house was a more complicated matter.

The court’s authority to distribute property in a divorce proceeding is not based on general equitable principles, but rather on the equitable distribution provisions of New York’s Domestic Relations Law, a statute passed by the Legislature that provides that “marital property,” defined as property acquired during the marriage of the parties, is subject to distribution between the parties upon divorce. Clearly, this house was not acquired “during the marriage.” While it was clear to the court that if Christine brought an action to dissolve the civil union in Vermont, a Vermont court could treat the house as “property of the civil union” and thus subject to distribution between the civil union partners under Vermont law, it was not clear that a New York court would have that authority, and a review by Justice Dollinger of New York case law provided, in his view, little support for Christine’s argument.

He wrote, “This court considers ‘marital property’ as defined by the Legislature in the Domestic Relations Law as the linch pin on which New York’s entire system of marital property distribution rests. If the property is ‘marital,’ the court can equitably distribute it. If not, the court has no jurisdiction to change title or ownership to it. Because of the central importance of creating an exact context in which courts could order a transfer to title to property, the Legislature adopted a black line test for determining when ‘distributable property’ existed in a marriage. The date of marriage – and no other date – is the time when ‘marital property’ exists,” citing Dom. Rel. L. sec. 236(B)(1)(c). While the courts have adopted a broad definition of “property” for purposes of enforcing this statute, Dollinger wrote, they had not adopted a broad definition of “marital,” adhering strictly to the statutory definition. On top of this, of course, when adopting its Civil Union Act in 2000, the Vermont legislature included a provision expressly declaring that a civil union is not a marriage, and Dollinger saw no basis for arguing that a New York court should or could treat a Vermont civil union as a marriage.

He also rejected the notion that the court could apply the doctrine of “comity” in order to treat the property the way it would be treated under Vermont law, pointing out the difficulties that would ensue in dealing with property claims based on a civil unions and domestic partnerships from the various jurisdictions where those statuses were created during the period between 2000 and the Supreme Court’s marriage equality decision on June 26, 2015. This would require New York courts to inquire into the nature of legal relationships in other jurisdictions and how they treated property distributions upon dissolution.

While he noted that some other states had dealt with this problem through express statutory provisions when adopting their marriage equality laws – notably Vermont and New Hampshire – and that the Massachusetts Supreme Judicial Court had accorded marital-like status to Vermont civil unions for some purposes, he observed, “Neither the New York Legislature nor the Court of Appeals has yet moved New York’s law into the same orbit as our neighboring sister states. The Legislature, in the Marriage Equality Act, simply made same-sex marriage legal in New York. It did not mandate that same-sex couples, who were united in civil unions in other state, acquired property rights through that civil union that are equal to the property rights granted to married couples.” By contrast, Vermont’s marriage equality law says that civil unions from other states would be treated as equivalent to marriages in Vermont. If the New York legislature were to amend the NY Marriage Equality law to add similar language, this problem would disappear.

For those tracking the development of these issues in New York, Justice Dollinger’s opinion provides a useful summary of the court opinions that have had to grapple with how civil unions elsewhere should be treated by New York courts. Unfortunately, none of them provides direct guidance about how to decide this case. Most of them deal with disputes involving custody, visitation and child support.

The judge also considered an alternative theory of treating the Vermont civil union as equivalent to a contract under which the parties agreed that property acquired during their civil union would be deemed jointly-owned property. There is precedent under New York law for the enforcement of express pre-nuptial agreements, for example, that would control the distribution of property, and the Court of Appeals has extended that concept to express agreements by non-marital cohabiting couples about their property rights, but has refused to enforce “implied” agreements based on cohabitation. While acknowledging that Christine’s argument along these lines “has a power logic,” Dollinger concluded that it went beyond what he was authorized to do under current law. “In this court’s view,” he wrote, “the proof problems and other complications that drove the Court of Appeals to deny recognition of an implied agreement for asset distribution between an unmarried couple are not present, in the same degree, in a civil union.” The Court of Appeals was worried about the problem of “amorphous” agreements that would not provide the kind of “black line” test that the term “marital property” provides. Dollinger acknowledged that this problem might not pertain to civil unions, which had well-defined contours in statutes such as Vermont’s Civil Union Act. “However,” he wrote, “whether this court should, in interpreting the Court of Appeals use of the word ‘amorphous’ in these opinions, conclude that the common use of this word was a springboard to change the definition of ‘marital property’ to include property – acquired during a statutory well-defined union in another state, but not acquired during a marriage – is, in view of this court’s limited authority, unwise. This interpretative reed – based on the use of the same word by justices more than two decades apart – is too tender to carry such weight.”

Ultimately, Dollinger concluded that the failure of the New York legislature to pass any statute recognizing out-of-state civil unions for any purpose effectively tied his hands. “There is no general common law of equity that is equivalent to the statutory creation of an equitable distribution power in the Domestic Relations Law,” he wrote, pointing out that the Court of Appeals has frequently ruled that a “marriage – of whatever type or from whatever jurisdiction – is the only touchstone for equitable distribution of property in New York.”

“In reaching this conclusion, the court is struck by the anomaly this case represents: this court is dissolving a pre-existing civil union, but only allowing equitable property distribution based on the couple’s marriage. Any ‘civil union’ property – which would be subject to distribution if this matter were venued in Vermont – remains titled in the name of the current title holder and is not subject to distribution,” he wrote. “In short, this court provides one remedy to the couple – dissolving the civil union – but declines to provide any further remedies based on their civil union. This court has no solution for this conundrum without violating longstanding principles of New York marriage-based laws. Any further answer rests with the Legislature.”

Justice Dollinger granted Christine’s motion for summary judgment to dissolve the civil union, but held “as a matter of law, that neither party is entitled to equitable distribution of any assets, acquired in their own names during the period of the civil union, prior to the date of marriage.” He reserved to trial the issue of the cross-claims for divorce and distribution of “marital property.”

This case presents a problem that is typical of transitional periods in the law, and over time the nationwide availability of marriage for same-sex couples will obviate the need to deal with this kind of issue. However, this case shows that such transitional issues may linger for many years, so it would be helpful for the Legislature to accept Justice Dollinger’s implicit invitation to add a provision to the Marriage Equality Law specifying how out-of-state civil unions and domestic partnerships should be treated in the context of dissolution proceedings brought in New York.

Deborah is represented by Debra Crowder of Badain & Crowder, of Rochester, and Christine is represented by Vivian Aquilina of Legal Aid Society of Rochester. The women have a child, whose interests in the divorce proceeding are represented by Lisa Maslow, also of Rochester.  There is, of course, the possibility that Christine could appeal Justice Dollinger’s ruling, which would go to the Appellate Division, 4th Department, based in Buffalo, and eventually to the Court of Appeals. Any legislative developments in response to the court’s invitation would be probably be too late to effect the outcome in this case.