Filling a gap in New York family law left open by the New York Court of Appeals’ 2016 decision In the Matter of Brooke S.B., 28 N.Y.3d 1, 61 N.E.3d 48839 N.Y.S.3d 89, Nassau County Family Court Judge Thomas Rademaker held in J.C. v. N.P., a decision published by the New York Law Journal on September 27, 2017, that the doctrine of equitable estoppel could be used to establish the standing of a lesbian co-parent who could not show that she and her former partner, the birth mother, had a written pre-conception agreement concerning parentage of the two children that were born during their relationship. (At the time of writing, the opinion had not yet appeared in the Lexis or Westlaw databases or been assigned a N.Y. Slip Opinion number, and the version of the opinion published on the Law Journal website did not include a docket number, but bore the date of publication of September 27.) In Brooke S.B., a similar case in other respects, the Court of Appeals had relied on the plaintiff’s allegation of the existence of a pre-conception agreement in determining the standing of an unmarried co-parent to seek custody, and stated “we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.”
The Court of Appeals’ statement left an ambiguity for lower courts confronted by cases such as J.C. v. N.P.. Does “if any” mean that co-parents who lack evidence of a pre-conception agreement are categorically barred from establishing standing to seek custody and visitation after their relationship with the child’s birth mother ends, as would be the case under the older precedents overruled in Brooke? Or, to the contrary, could it just mean that lower courts have room to consider other legal doctrines that would enable them to reach what should be the overriding question in such custody/visitation disputes: what is in the best interest of the children?
Judge Rademaker opted for the second approach. “It is doubtful that the Court of Appeals meant that no test should apply and it is beyond doubt that the Court of Appeals carefully tailored their holding to the fact specific case before them. Simply put, the holding in Brooke applies to situations when a pre-conception agreement is proven to exist by clear and convincing evidence.” Further, the “if any” comment struck Rademaker as showing that the Court of Appeals felt it was premature to take the next step of allowing a co-parent to establish standing based on events that occurred upon and after the birth of the child until an appropriate case arose that required determination of that question. While finding that relying solely on a “best interest of the child” test would provide “far too amorphous a standard” to determine co-parent standing, wrote Rademaker, “Given precedent, the social and legal acknowledgement of same sex marital status, parentage, and the like, this Court looks to the doctrine of equitable estoppel for guidance in the instant matter.” Rademaker explained that this doctrine has been frequently pressed into service by New York courts in determining that a man without a biological/genetic relationship to a child can be deemed a parent in certain circumstances, and he noted that those opinions emphasized that the overriding factor in such cases should be the best interest of the child.
“To prevail on the grounds of estoppel, the moving party bears the burden of proving, by clear and convincing evidence, that she has the right to the relief being sought,” the judge wrote, disclaiming any intent to create rigid guidelines or lists of factors that must be proven, while taking note of the factors that had been cited by the courts in cases determining men’s status as fathers.
In this case, the court found, J.C. and N.P. began their relationship around January 10, 2014, at which time N.P. was still married to, but separated from, another woman. Within days, N.P. became pregnant through donor insemination, and J.C. participated fully during the pregnancy, accompanying N.P. on doctor visits. “Throughout their relationship,” Rademaker found, “including the pregnancies, the parties lived together in each other’s homes which they separately owned, dividing time between the two homes depending upon the season and work schedules.” When their first child, C.C., was born on September 29, 2014, they brought him to J.C.’s house, where a nursery room had been prepared for the child. Through the women’s subsequent relationship, including the birth to N.P. of a second child conceived through donor insemination who was born in May 2016, the women both functioned as parents, were regarded as a family by the children’s pediatrician, neighbors, and their other family members. The two children are described by the court as “biological siblings,” presumably because the same man served as sperm donor for both children.
There was also documentary evidence, in the form of an email N.P. sent to her parents on October 16, 2015, as she and J.C. were going to the airport for N.P. to travel, in which she stated: “Since I have a child, don’t have a legal will and [JC] and I aren’t married yet, I figured I would put my wishes in writing just in case of an unfortunate event and I don’t return from Miami safely. Since [JC] is [CC]’s co-parent and other mommy, my wish is for her to have full custody and raise [CC] as her own in the instance I’m not on this earth to raise her myself. Thank you!” Although N.P. testified that this was sent to assuage J.C.’s concerns, the court found no reason to believe the statement was sincerely meant.
In a footnote, Judge Rademaker specifically rejected N.P.’s argument that J.C.’s standing claim was barred by the fact that N.P. was married to another woman at the time of C.C.’s conception. “It has been held that the presumption of legitimacy is a presumption of a biological relationship, not a legal relationship,” he wrote, “and therefore has no application to same-gender married couples,” citing Matter of Paczkowski v. Paczkowski, 128 App. Div. 3d 968 (2nd Dept. 2001). “Moreover,” he wrote, “respondent’s judgment of divorce from her prior spouse clearly rebuts any presumption that C.C. is a child of that marriage, and respondent is bound by that determination under the doctrine of collateral estoppel.” He also rejected N.P.’s argument that the failure of J.C. to adopt the children due to N.P.’s negative response to J.C.’s suggestions should carry more weight than the tangible evidence of N.P. treating J.C. as a parent and sharing parenting responsibilities with her. “Simply stated,” wrote the judge, “respondent may have been apprehensive at times about the course of the relationship and perhaps even embarrassed by comments made by petitioner at particular family events but respondent’s daily words and actions with and toward petitioner, as well as CC and AJ [the second child], throughout the relationships were, in fact, quite different.”
The parties’ relationship ended early in 2017 and they separated, but J.C. continued “to see, care for, and tend to the children,” and they all went together on a ski weekend trip in February “together with the children sharing the same room together with the children after the relationship purportedly ended.”
Rademaker found that J.C. had “established by clear and convincing evidence that respondent created, fostered, furthered, and nurtured a parent-like relationship between the children and petitioner. Commencing just a few days after the older child’s conception, and continuing well after the demise of the parties’ relationship, respondent acted as if petitioner was a parent and acknowledged to petitioner, the children, and others that petition was essentially a parent, to wit, a “Mommy,” and both respondent and the children benefitted from this parent-like relationship on a daily basis for years. Petitioner is adjudicated to be a parent of the subject children and therefore, has standing to seek visitation and custody.”
The next step will be for the court to determine whether it is in the best interest of the children for J.C. to be granted custody and visitation rights.
The Law Journal article reporting on the decision suggested that this was the “first” New York court decision to “offer an answer” to the question whether a co-parent could be adjudicated to be a parent in the absence of a pre-conception agreement. Neither the article nor the opinion identified counsel for the parties. In a footnote, Judge Rademaker acknowledged the “invaluable assistance of Court Attorney Jeremy Jorgensen in the preparation of this decision.”