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Supreme Court Denies Review in Two LGBT-Related Cases on First Day of New Term

Posted on: October 22nd, 2019 by Art Leonard No Comments

The Supreme Court announced on October 7 that it was denying review in two LGBT-related cases: Frank G. v. Joseph P. & Renee P.F., No. 18-1431, a New York case, and Calgaro v. St. Louis County, No. 19-127, a Minnesota case from the 8th Circuit Court of Appeals.  The more significant decision is to deny review in the Frank G. case.

In Frank G., 79 N.Y.S.3d 45 (N.Y. App. Div. 2018), the New York 2nd Department Appellate Division upheld a decision by an Orange County Family Court judge to award custody of twin boys to the former same-sex partner of the children’s biological father, and the New York Court of Appeals denied review.

The children’s biological mother, Renee, is the sister of Joseph P., the former same-sex partner.  Frank G., the biological father, had moved with the children to Florida without notifying Joseph P., who had a closely-bonded relationship with the children even though the fathers were no longer living together.  Joseph P. sued to be appointed a guardian of the children, at a time when the Court of Appeals had not yet recognized the parental status of same-sex partners.

After the Court of Appeals ruled in Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), that same-sex co-parents could be recognized as having the same parental rights and standing as biological or adoptive parents in certain circumstances, even if they were not married to the biological parent or had not adopted the children, Joseph P. amended his complaint to seek custody.

Orange County Family Court Judge Lori Currier Woods evaluated all the relevant circumstances and decided that the children’s best interest would be served by awarding custody to Joseph P. and according visitation rights to Frank G.   She did not find that Frank G. was “unfit”, but instead placed both fathers on equal standing and then considered which one would provide the preferable home for the twins.  Relying on Brooke S.B., the Appellate Division affirmed.  Frank G. tried to appeal this ruling to the Court of Appeals, arguing that his Due Process rights under the 14th Amendment of the U.S. Constitution were violated by the lower courts’ opinion, but the Court of Appeals refused to hear his appeal.

In past cases, the Supreme Court has recognized as a fundamental right the liberty interest of biological parents in the care and raising of their children.  In his Petition to the Supreme Court, Frank G. argued that this liberty interest was violated when he was deprived of custody in favor of a co-parent based on a “best interest of the children” analysis without any finding that he was unfit or unqualified to have custody.

The Petition argued to the Supreme Court that the case had national significance and needed a Supreme Court ruling, because various state courts have disagreed about how to handle parental custody claims by unmarried same-sex partners of biological or adoptive parents.  Since the Supreme Court is most likely to grant review in a case that presents important constitutional questions about which lower courts are divided, it seemed highly likely that the Court might decide to review this case.  The likelihood was enhanced because Frank’s petition was filed by Gene Schaerr, a former clerk of Chief Justice Warren Burger and Justice Antonin Scalia and a prominent anti-LGBT lawyer and partner in a Washington, D.C., firm that frequently litigates in the Supreme Court.  Furthermore, several amicus briefs were filed in support of the Petition, urging the Court to reaffirm the traditional doctrine that biological parents who are not found to be “unfit” always have custodial preference over persons who are not related to their children by biology or adoption.

Had the court taken this case, the current conservative majority might abrogate Brooke S.B. and similar decisions from other states that have been important precedents according equal standing to same-sex parents.  The denial of review means the law can continue to develop in the lower courts for now without intervention by the Supreme Court, which is at least a temporary victory for LGBT rights advocates.

The denial of review in the other case, Calgaro v. St. Louis County, 919 F.3d 1054 (8th Cir. 2019), was expected, since the conservative 8th Circuit found no merit to Anmarie Calgaro’s claim that she should be entitled to damages from individuals and institutions that had assisted her child, a transgender girl, when she decided to leave her unsupportive home before she had reached age 18 in order to transition.  Calgaro argued unsuccessfully in the federal district court in Minnesota and before the 8th Circuit that her constitutional rights as a mother were violated when the county and its public health director, the local school district and high school principal, and other private institutions respected her child’s wishes and kept Anmarie in the dark about where her child was living.  She also objected to being excluded from decisions about her child’s transition.

Of course, the case raises important issues, but the Supreme Court has shown great reluctance to get involved with cases that are effectively moot, and in this case E.J.K., the child in question, has long passed the age of 18, thus achieving adult status under Minnesota law and being entitled to emancipate herself from control by her parent.  Calgaro is represented by the Thomas More Society, a Catholic lawyers group that generally focuses on religious free exercise cases, occasionally in opposition to LGBT rights.  E.J.K. is represented by the National Center for Lesbian Rights.  Two conservative groups filed amicus briefs urging the Court to take the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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.

States Take Differing Stances on Parental Status of Same-Sex Partners and Spouses

Posted on: May 22nd, 2015 by Art Leonard No Comments

Legal observers have been predicting that the Supreme Court will rule this June in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment of the U.S. Constitution and to have such marriages recognized by every state, but such a ruling will not necessarily settle all the issues of parental rights of same-sex couples that continue to divide the courts.  Litigation in four jurisdictions demonstrates the continuing problem of sorting out such rights.

The Massachusetts Supreme Judicial Court ruled on May 7 in Adoption of a Minor, 2015 Mass. LEXIS 248, 2015 WL 2095242, that the traditional presumption that a child born to a married woman is the legal child of her spouse applies to a lesbian couple, so they need not provide formal notice to their sperm donor that they are seeking a joint adoption in order to avoid problems if they travel or relocate outside Massachusetts.   But on May 20, the New York 2nd Department Appellate Division, in Brooklyn, ruled in Paczkowski v. Paczkowski, 2015 N.Y. Slip Op. 04325, 2015 WL 2386457, that the parental presumption does not apply to a lesbian couple, affirming a Nassau County family court ruling that the non-biological mother has no standing to seek a joint custody order for the child born to her same-sex partner.  In Oregon, the Court of Appeals ruled on May 13 in In re Domestic Partnership of Madrone, 2015 Ore. App. LEXIS 577, 2015 WL 2248221, that the question whether the former registered domestic partner of a birth mother should be considered the legal parent of the child turned on whether the women would have married had that option been available when the child was born, and in Wisconsin, Lambda Legal filed suit in Torres v. Rhoades, No. 15-cv-288 (U.S. Dist. Ct., W.D. Wis.), also on May 13, on behalf of a married lesbian couple denied the benefit of the marital presumption by state officials who have thus far refused to list both women as parents on their child’s birth certificate.

The cases each present somewhat different facts, but all of them implicate the question whether some form of the parental presumption should apply when children are born to a lesbian couple as a result of donor insemination.  The parental presumption, whether adopted as a judicial rule or through legislation, has differed in its strength from state to state, but has generally been applied by courts and government officials to ensure that a child born to a married woman not be deemed “illegitimate” and be entitled to the support of the biological mother’s spouse, and the presumption took on particular significance when married different-sex couples began to resort to donor insemination to deal with problems of male infertility, raising questions about the legal rights and responsibilities of the husbands.

In the Massachusetts case, petitioners J.S. and V.K., a married lesbian couple, filed a joint petition to adopt their son Nicholas who was born to J.S. in 2014, having been conceived through in vitro fertilization using a known sperm donor.  The women were married when Nicholas was born, and both are listed as parents on his birth certificate.  According to the opinion for the Supreme Judicial Court by Justice Fernande R.V. Duffly, the women “sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth or in the event of their relocation to a State where same-sex marriage is not recognized.”  They sought to proceed with the adoption without given notice to the sperm donor, contending that since he was not a legal parent of Nicholas, no notice was required.

 The family court judge denied their motion to dispense with the notice, certifying the question whether notice to a known biological father was required to the state appeals court.  The Supreme Judicial Court transferred the case directly to its docket, and concluded that such notice was not required.

Justice Duffly made clear that the parental presumption applied in this case.  “As to a child of a marriage who is conceived via artificial insemination or IVF, as here,” wrote Duffly, “[the statute] by its nature, contemplates that a third party must provide genetic material for the child’s conception.  Nonetheless, as is consistent with our paternity statutes and long-standing presumption of the legitimacy of marital children, [the statute] confers legal parentage only upon the mother’s consenting spouse, not the sperm donor.  It is thus presumed that marital children have only two lawful parents: the biological mother and her spouse.”  While acknowledging that there are contexts in which a sperm donor might assert claims to parentage, they did not apply in this case, where the sperm donor was not seeking any parental standing.  Thus, the court concluded, since the adoption statute “does not require the lawful parents of a child to give notice of the petition for adoption to a known sperm donor, we answer the reported question, ‘No.’  The order denying the petitioners’ motion to proceed with the adoption without further notice is reversed.”

 

The contrary ruling by the New York Appellate Division provides little rational explanation.  The case of Jann P. v. Jamie P. produced a startling ruling from Nassau County Family Court Judge Edmund M. Dane on June 30, 2014, holding that the state’s 2011 Marriage Equality Law, which provides that same-sex and different-sex marriages should be treated the same for all purposes of New York law, did not apply to the parental presumption.  The appellate division’s ruling abandoned the trial court’s decision to provide anonymity to the parties, identifying them as Jann and Jamie Paczkowski.  They were married when their son was born, but the marriage was a shaky one, and no adoption was undertaken.

When the couple separated and Jann sought a court order allowing her continued contact with her son, Judge Dane insisted that the parental presumption did not apply because it was physically impossible for Jann to have been the child’s biological parent.  On May 20, the Appellate Division echoed this conclusion.  “Here, the petitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody,” wrote the court.  “Contrary to the petitioner’s contention,” the statutory provisions concerning the parental presumption “do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of a legal status, and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child’s biological parent.”

The court’s wording signals the archaic legal formalism of its approach to this issue.  Referring to “the subject child” as if this case did not involve flesh-and-blood people with emotional and psychological attachments – in this case, the bonding of a mother-child relationship extending over many months until Jann’s continued contact with her child was cut off – suggests that the judges were more concerned with  legal categories than human relationships, totally at odds with the underlying philosophy of family law, which is to strive to protect the best interest of children in disputes involving their parents.  The case cries out for reversal by the Court of Appeals or the legislature.

Surely, when the New York State legislature adopted a Marriage Equality Law that expressly provides that same-sex and different-sex marriages were to be treated as equal in all legal respects, it could not have implicitly intended to create an exception to the parental presumption statute.  And that statute is not written in gendered terms.  Section 417 of the Family Court Act states, “A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of the marriage.”  Clearly, the intent of the statute is to legitimize the birth of any child born to a married woman by recognizing both spouses as parents of the child.  The practice commentary published in the statute book states that this presumption “should apply to same sex as well as heterosexual married couples.”

The commentary cites a Monroe County decision from 2014, Wendy G.M. v. Erin G.M., 45 Misc. 3d 574, supporting this conclusion, in which the court ruled that a common law (non-statutory) policy could be applied to recognize the parental status of the biological mother’s wife.   Ironically, and inexplicably, the Appellate Division’s decision in the Paczkowski case cites the Wendy G.M. decision without acknowledging that it would support Jann’s standing to seek custody, making it seem as if the two decisions are consistent.  One wonders whether the judges whose names are attached to the Paczkowski ruling – Randall T. Eng, L. Priscilla Hall, Jeffrey A. Cohen, and Betsy Barros – bothered to read the Wendy G.M. decision.

The Oregon case is a bit more complicated.  Karah and Lorrena, same-sex partners, did not have a legally recognized relationship when Lorrena bore a child through donor insemination, although they entered into a registered domestic partnership after the child was born.  They had a commitment ceremony a few years before the child was conceived through donor insemination.  There was evidence, however, that Lorrena had expressed ideological opposition to marriage as an institution, and she testified that having the child was originally her idea and she never intended for Karah to be a legal parent of the child.  Despite their entering into a domestic partnership after the child was born, it seems that their relationship had deteriorated during Lorrena’s pregnancy, and the circumstances under which the domestic partnership papers were signed is disputed by the parties.  On the other hand, they had agreed to adopt a new surname, Madrone, and that name was used for the child’s birth certificate, both women being listed as parents.  After the subsequent break-up, Karah sought to establish her parental status, relying on a prior Oregon court decision recognizing parental standing for same-sex partners.  Today same-sex partners can marry in Oregon as a result of a court ruling last year, but that option was not available when the child was born.

The court of appeals determined that Karah’s parental standing should turn on whether the women would have married had that option been available to them at the time the child was born.  Thus, the court implicitly endorsed the view that if this same-sex couple had been married when the child was born, Karah’s parental status would have been the same as that of a husband who had consented to his wife becoming pregnant through donor insemination, applying the statutory parental presumption.

The Lambda Legal lawsuit in Wisconsin seeks to vindicate the same principle.  Marriage equality has been available in Wisconsin since the U.S. Supreme Court announced on October 6, 2014, that it would not review a decision by the U.S. Court of Appeals for the 7th Circuit finding that Wisconsin’s ban on same-sex marriage was unconstitutional.  This includes, of course, a requirement that Wisconsin recognize same-sex marriages contracted in other states.

Chelsea and Jessamy became friends in 2001, have lived as partners in a committed relationship since 2010, and were married in 2012 in New York.  They live in Dane County, Wisconsin, and initiated the process of having a child together in 2013, using the services of a fertility clinic for Chelsea to conceive through assisted reproductive technology.  Their child was born in March 2015 in Madison, and they filled out forms to obtain a birth certificate listing both of them as parents.  But when they received the “Notification of Birth Certificate Registration” from the state’s Department of Health Services, Chelsea was listed as the only parent.  Their lawyer corresponded with the Department, but the response was that DHS was “evaluating” the situation, and as of the filing of their complaint in the U.S. District Court on May 13, they had not received a correct birth certificate listing both of them as parents.

Their complaint points out that a Wisconsin statute embodies the parental presumption and applies it to situations where a wife becomes pregnant through assisted reproductive technology.  Although the statute uses gendered language (referring to the husband and the wife), courts in other states, such as California, have held that such statutes should be construed as gender neutral in the case of same-sex married couples to be consistent with constitutional equality requirements.  Their complaint alleges that failure to apply the parental presumption and issue the birth certificate violates the couple’s equal protection and due process rights under the 14th Amendment.

It may be that once the U.S. Supreme Court has issued a marriage equality ruling these parental presumption issues will eventually be sorted out in a consistent manner, but the differing approaches of state officials and courts suggests that this is one issue that will require further work to pin down the practical implications of marriage equality once the basic principle has been established.

 

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 Appellate Division Rules on Erotic Asphyxiation Case

Posted on: May 11th, 2014 by Art Leonard No Comments

A unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, ruled that a jury erred in convicting Larry Davis of second degree murder in the death of his sexual partner, Richard McCoy, from asphyxiation. Finding that a jury could reasonably have acquitted Davis of the murder charge, the court reduced the conviction to manslaughter in the second degree and sent the case back to the trial judge, Justice Dineen Riviezzo of Kings County Supreme Court.

According to the court’s opinion, McCoy was found dead in his apartment on August 19, 2010, with a “piece of clothing around his neck.” Davis told the police that “he tied a piece of clothing around the victim’s neck and that he tightened it while they were engaging in sexual conduct to enhance sexual pleasure.” Davis told the police that “he pulled harder on the piece of clothing because he was ‘pissed off’ due to his own inability to reach orgasm and that he failed to realize that the ligature was ‘dangerous’ to the victim, and that he ‘didn’t mean it’.”

The medical examiner testified at trial that McCoy died by strangulation, that it would have taken fifteen seconds for McCoy to lose consciousness if sufficient pressure was applied to his neck by the piece of clothing, and that death would have occurred after three more minutes of pressure.

The jury returned a verdict of second degree murder. In order to reach that verdict, the jury had to find beyond a reasonable doubt that Davis intended to kill McCoy. On appeal, Davis argued that the verdict was against the weight of the evidence. Davis argued that the only evidence going to motive that was presented to the jury was his statement to the police that he did not intend to kill McCoy.

“Weight of evidence review requires a court first to determine whether an acquittal would not have been unreasonable,” wrote the court. “If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt.”

Concluding that the jury’s verdict was against the weight of the evidence in this case, the court found that “an acquittal would not have been unreasonable.” Although the evidence showed beyond reasonable doubt that “the defendant tied a ligature around the victim’s neck, that he tightened it, and that his actions caused the victim’s death,” the court found that the prosecution had not proved beyond a reasonable doubt that it was Davis’s “conscious objective” to kill McCoy.

“The evidence supports a finding that the defendant, while engaging in sexual conduct with the victim, acted recklessly by continuing to hold the ligature around the victim’s neck with sufficient force and for a sufficient length of time to completely obstruct blood flow to the victim’s brain during his effort to achieve sexual gratification, but not as a part of a calculated effort to kill the victim.” Thus, according to the court, the appropriate verdict was manslaughter, a lesser offense that would carry a lesser sentence. It will be up to the trial court to determine an appropriate new sentence for Davis.