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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.