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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.

New York Appellate Division Finds Lesbian Birth Mother “Judicially Estopped” From Denying Former Partner’s Parental Status

Posted on: December 31st, 2014 by Art Leonard No Comments

A unanimous panel of the N.Y. Appellate Division, 2nd Department, ruled on December 24 that a birth mother who successfully sued her former same-sex partner for child support was “judicially estopped” from arguing that the partner lacked standing to seek visitation rights with the child.  Arriaga v. Dukoff, 2014 WL 7332764.

Estrellita Arriaga and Jennifer Dukoff lived together in a romantic relationship beginning in December 2003 and registered as domestic partners in New York City in 2007.  They decided to have a child together and Dukoff became pregnant with sperm from an anonymous donor, giving birth to their daughter in November 2008.  The women shared parental responsibilities, but Arriaga never legally adopted the child.  Their relationship ended in May 2012, and Arriaga moved out in September of that year, when the child was almost four years old.  Arriaga continued to visit with the child several days a week.

In October 2012, Dukoff filed a petition in the Family Court seeking child support from Arriaga.  In the petition, she described Arriaga as “a parent to the child” who was “chargeable with the support of the child.”  While the support proceeding was pending, Arriaga filed her own lawsuit against Dukoff, seeking custody or visitation with the child.  After the Family Court issued an order on January 16, 2013, requiring Arriaga to pay child support, she amended her petition, pointing out that the Family Court had adjudicated her as a parent of the child, and thus she was entitled to seek custody and/or visitation as an adjudicated parent.  Dukoff moved to dismiss Arriaga’s petition, arguing that under the N.Y. Court of Appeals precedents of Alison D. v. Virginia M., 77 N.Y.2d 651, and Debra H. v. Janice R., 14 N.Y.3d 576, which had reaffirmed the %Alison D.% ruling, Arriaga was a “legal stranger” to the child who did not have standing under New York law to seek custody or visitation.

Suffolk County Family Court Judge Theresa Whelan denied Dukoff’s motion to dismiss, finding that the prior adjudication of Arriaga’s parental status in the child support proceeding was binding in this later proceeding under the doctrine of judicial estoppel.  Once an issue has been adjudicated in favor of a party, judicial estoppel precludes that party from asserting a contrary view in a later proceeding.  When it was in her financial interest for the court to consider Arriaga a mother with support responsibilities, Dukoff argued in favor of Arriaga’s parental status; she could not now turn around and deny that status when it was in her interest to do so in defending against a possible custody or visitation order.

The Appellate Division panel consisting of Justices Reinaldo E. Rivera, Sheri S. Roman, Colleen D. Duffy, and Betsy Barros issued a unanimous decision not attributed to any of the individual judges, which means it was most likely drafted by a court attorney and approved collectively by the panel.  The decision affirms Judge Whelan’s order awarding visitation rights to Arriaga.

The court noted that in the Debra H. case, while reaffirming Alison D. the Court of Appeals had found that a lesbian co-parent who was a Vermont Civil Union partner of the birth mother at the time the child was born would be recognized as a parent by a New York Court as a matter of comity to Vermont law.  In that case, the Court of Appeals found that recognizing Debra H. as a parent “did not conflict with the public policy of New York and would not ‘undermine the certainty that %Alison D.% promises biological and adoptive parents and their children,’ since ‘whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption.  And both civil union and adoption require the biological or adoptive parent’s legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish %de facto% or functional parentage.”  In other words, the Appellate Division panel found that the concerns animating the %Alison D.% decision were “not implicated in the present case,” since the  judge would not have to hold a hearing or make any sort of factual investigation to determine whether Arriaga should be deemed a parent, as that decision had already been made in the support proceeding.  Furthermore, the court pointed out, that support award was made at the request of Dukoff, who “was the party who sought to have Arriaga adjudicated a parent.”

Although the Court of Appeals has rejected the use of “equitable estoppel” to find that a same-sex partner is a parent, the Appellate Division pointed out that this use of the doctrine of judicial estoppel “differs from establishing parentage by equitable estoppel.”  Dukoff tried to argue that Arriaga should be precluded by judicial estoppel from asserting her parentage in this proceeding when she had taken the position in the support proceeding that her lack of parental rights under New York law precluded the court from requiring her to pay child support.  The Appellate Division found that “the doctrine of judicial estoppel is not applicable to Arriaga because she did not obtain a favorable judgment in the support proceeding.”  Only a party who has argued a point successfully in one proceeding is bound by that ruling in a subsequent proceeding under the doctrine of judicial estoppel.

During the course of this case, Arriaga dropped her request for custody, seeking only a visitation order, which Judge Whelan had granted.  The Appellate Division affirmed that order.

Jeffrey Trachtman and Andrew Estes of Kramer Levin Naftalis & Frankel LLP (New York City) and Susan G. Mintz of Gervase & Mintz P.C. (Garden City) represented Arriaga, and Margaret Schaefler of Huntington represented Dukoff.  Robert C. Mitchell of Central Islip appeared as counsel representing the interests of the child.

New York Lesbian Co-Parent Custody Claim Precluded under 12-Year-Old Decision

Posted on: October 8th, 2013 by Art Leonard No Comments

The evil that courts do lives on…  On October 4, 2013, the New York Law Journal published Rockland County Family Court Referee Dean Richardson-Mendelson’s opinion in Matter of A.F. v. K.H., V-00918-13, rejecting all attempts by a lesbian co-parent to obtain judicial relief against her former partner’s action of excluding her from contact with the children they had been raising together.  The principal barrier to her case is the N.Y. Court of Appeal’s old decision, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which held in similar circumstances that the co-parent was, despite her relationship parental relationship with a child since the child’s birth, a “legal stranger” who did not have standing under New York law to obtain a declaration of her parental rights, custody or visitation, and that the circumstances that the women had agreed to raise a child together did not amount to “special circumstances” required under New York law to enable a legally-unrelated third party to seek custody of a child.

In A.F. v. K.H., the parents had registered as domestic partners, but the court mentions this only in passing and does not specify the jurisdiction.  A.F. and K.H. were living together as a couple when they decided to have children, using anonymous donor insemination for K.H. to conceive two children.  They lived together raising the children until they separated in July 2011, but continued to live on different floors in the same house, facilitating continued contact between A.F. and the children, who lived with K.H.  In February 2012 K.H. moved out with the children to her mother’s house in New Jersey, but then relocated back to another town in New York State in August 2012.  A.F. continued to have visitation two days a week and alternate weekends, until a promotion at her job made weekday visitation impossible.

A.F. contributed to the support of the children financially.  In May 2012, K.H. had filed a petition in Rockland Family Court seeking formal child support from A.G.  In support of this claim, her petition was full of factual allegations seeking to persuade the court that A.F. was a parent of the children who should be held to this responsibility.  But in August, she withdrew the petition, and the Support Magistrate marked it as withdrawn.

Visitation by A.F. and financial support for the children continued until an “altercation during a visitation exchange” in April 2013, after which K.H. has not allowed further visitation, resulting in A.F. filing this petition.

Referee Richardson-Mendelson found that the Alison D. decision, never overruled or modified by the Court of Appeals and subsequently followed by all four departments of the Appellate Division, had to control this case in terms of A.F.’s legal claim under the Domestic Relations Law.  One who would be declared a “legal stranger” to the child in 1991 remains a legal stranger today, as far as that statute is concerned, because the legislature never heeded the court’s suggestion that it address the issue of non-traditional families.  Second-parent adoption is legal in New York, as is step-parent adoption, but these parties never took those steps and did not marry in 2011 when New York enacted marriage equality.

Any local domestic partnership registration would presumably not change this, since custody and visitation are matters of state law, which may explain why the court does not explicitly factor that into its analysis.

Failing on a legal claim under the custody statute, A.F. also advanced equitable arguments.  First, she contended that the court should use the doctrine of equitable estoppel to hold that K.H. could not legally deny A.F.’s parental status because she had, in fact, treated A.F. as a parent of the child for several years, fostering the relationship of A.F. with the children and allowing visitation to continue for almost two years after the women’s relationship had ended.  But the Court of Appeals had directly rejected such an argument in the Alison D. case, so the court found that A.F. was precluded from making it.

Finally, A.F. argued judicial estoppel, a doctrine that prevents a party from taking diametrically opposite positions in legal proceedings.  A.F. pointed out that K.H. had filed a support petition in which she alleged that A.F. was a parent of the children, but now was arguing that she was not a parent.  A.F. contended that K.H. should not be able to assert these opposite positions.  But the court rejected this argument as well, pointing out that K.H. had withdrawn her support position longer before A.F. filed the custody and visitation petition.  The court also pointed out that this doctrine normally applies when a party’s assertion of the first petition had resulted in a legal judgment in her favor, that judgment then providing the basis to block her from taking the opposite position in a later proceeding.  In this case, however, K.H. withdrew her petition before any finding on A.F.’s parental status had been made and before any support order had been issued.

Thus, it made no matter to the court that New York is now a marriage equality jurisdiction.  Marriage equality provides equal marital rights, but it does not change the legal position of unmarried partners toward each other or their children.  Unless the New York legislature changes the rules, the legal invisibility of unmarried same-sex couples raising children will continue.

NY Family Court Uses Judicial Estoppel In Lesbian Co-Parent Custody Case

Posted on: May 15th, 2013 by Art Leonard No Comments

Suffolk County, N.Y., Family Court Judge Theresa Whelan used the doctrine of judicial estoppel to find that a lesbian mother who had previously acknowledged her former partner’s parental status when seeking a support order from the court, was precluded from denying the partner’s parental status in opposition to a custody/visitation petition.  Judge Whelan’s April 2, 2013, ruling was published in the New York Law Journal on May 10.

The parties, identified as Estrellita A. and Jennifer D., registered as domestic partners in 2007.  They decided to have a child and chose a sperm donor through North Shore University Hospital.  Jennifer became pregnant through donor insemination and their child was born on November 23, 2008.  Because of the donor conception, no father was identified on the birth certificate, and Jennifer was identified as the sole parent. Although the women had discussed having Estrellita adopt their daughter, no adoption petition was filed.  In September 2012, the women stopped living toether, and on October 24, 2012, Jennifer filed a petition with the Family Court seeking child support payments from Estrellita. 

Jennifer’s petition stated that she and Estrellita had a child in common, and asked the court to rule upon whether Estrellita should be delcared a parent for purposes of establishing a child support order.  After a hearing, the court found that Estrellita was a parent to the child and charged her with a duty to pay child support.  Judge Whelan issued that order on January 16, 2013.  Meanwhile, Estrellita filed her own petition on January 10, seeking custody of the child.  In her petition, Estrellita contended that it would be in the child’s best interest that she have custody as “she is better suited to foster a relationship between the child and her biological mother,” according to Judge Whelan’s summary of the petition.  After  Judge Whelan’s support order was issued, Estrellita amended her petition to refer to the finding that she is a parent of the child.  On January 30, Jennifer filed a motion to dismiss the Custod/Visitation Petition, arguing that as a matter of New York child custody law, Estrellita is a “legal stranger” under Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), and thus lacks standing to seek custody.

In the Alison D. case, the New York Court of Appeals construed the domestic relations law to limit the right to seek custody or visitation to a person who is either a biological or adoptive parent of a child.  This, the court asserted, would meet the intent of the legislature that adopted the statute.  Reflecting this case law, Judge Whelan wrote, “In the realm of same-sex parents, the Court of Appeals has consistently ruled that absent an adoption, the non-biological partner is not a parent under Domestic Relations Law Sec. 70,” the provision authoring custody/visitation petitions. 

Jennifer argued that under this case law, Estrellita as precluded from seeking custody or visitation.  “If the facts present here were the same as in the cases cited by respondent,” wrote the judge, “the Court would agree.  Of course, the Family Court is mandated to apply the rulings of the Court of Appeals.  However, respondent omits critical facts from her argument and it is these facts that defeat her argument.  Respondent, in her own child support petition alleges that she and the petitioner herein have ‘a child in common’.  Further she requested and received an estoppel hearing.  At that hearing respondent testified, among other things, that petitioner not only performed as a parernt, she was in fact a parent.  The court relying on this testimony issued an order adjudicating petititoner to be a parent and referred the matter to the support magistrate for the entry of an appropriate child support order.  Now, in a complete reversal, and in an effort to preclude petitioner from having her day in court, respondent now claims that petitioner has no standing to bring a custody/visitation proceeding because petitioner is not a parent.  Colloquially, this is known as ‘having your cake and easting it too.’  Judicially, it is referred to as ‘inconsistent positions’ which this court will not countenance.”

Judge Whelan pointed out that a court can resort to the doctrine of judicial estoppel to prevent a party from taking such an inconsistent position.  “Having petitioned this court to recognize the petitioner herein as a parent, having testified that petitioner is in fact a parent and having prevailed in that matter, the respondent is judicially estopped in this custody/visitation proceeding from asserting that petitioner is not a parent.”  Judge Whelan observed that this basis of decision was distinct from “equitable estoppel,” which the Court of Appeals had ruled out in the Alison D. case as a basis for finding custody standing, since the ruling was based on Jennifer’s own prior conduct in court proceedings basically asserting the fact of Estrellita’s parenthood, under oath, in order to get the support order.

Taking note of case law supporting the “important liberty interest of the biological parent to exercise control over who associates with their child,” Judge Whelan concluded: “This biological parent deliberately sought to involve her former partner in her child’s life at least until her financial majority.”

Interestingly, Judge Whelan did not mention the parties’ domestic partnership in support of her decision.  Perhaps this is because domestic partnership in New York is a creature of local law (county or municipal) and so cannot create rights under state law.  Had Estrellita and Jennifer been legally married when their child was born, the result would be different.   Indeed, the Court of Appeals has even recognized an out-of-state civil union as being relevant to an individual’s standing to petition for custody of a child born after the civil union was contracted.  And, under the New York Marriage Equality Law enacted in 2011, of course, a child born to a married woman will be presumptively the legal child of her same-sex spouse.

This, of course, is not a ruling on the merits of the Custody/Visitation petition, but merely a ruling that Estrellita may proceed to a hearing on the merits in her attempt to prove that it would serve the best interest of the child to award custody to her.  Estrellita is represented by the firm of Gervase & Mintz, Garden City.  Jennifer is represented by Margaret Schaefler, Central Islip.  Attorney appointed to represent the interest of the child is Jennifer Marin, Legal Aid Society of Suffolk, Central Islip.    Ms. Marin had argued to the court an alternative theory for allowing Estrellita to petition: the “extraordinary circumstances” doctrine under which a court will a “legal stranger” to seek custody.  However, this constellation of facts has become too common — and is too much like the facts in Alison D. — to be a convincing instance of “extraordinary circumstances,” at least in the view of Judge Whelan.