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Oklahoma Supreme Court Rules for Same-Sex Co-Parent Standing in “Parity” With Birth Mother in Custody Dispute

Posted on: July 1st, 2019 by Art Leonard No Comments

The Oklahoma Supreme Court ruled 8-1 in Schnedler v. Lee, 2019 WL 2588577, 2019 Okla. LEXIS 49 (June 25, 2019), that “a non-biological same-sex parent stands in parity with a biological parent,” and that once standing requirements are met, “the court shall adjudicate any and all claims of parental rights – including custody and visitation – just a the court would for any other legal parent, consistent with the best interests of the child.”  The lone dissenter, Justice Richard Darby, claimed that the court had issued an “advisory opinion” that was beyond its purview, and should have used “judicial restraint” and based its holding on “the narrowest grounds possible.”  Instead, the court treated it prior precedent on the issue of same-sex co-parent standing as obsolete and substituted an entirely new analysis.  Chief Justice Noma Gurich wrote the court’s opinion.

Lori Schnedler and Heather Lee met each other in the early 2000s, while both were employed by the Bartlesville Police Department, their relationship progressing from co-workers to co-habitants of an apartment.  After Lori did overseas military service, they bought a house together and decided to have a child.  “A work friend of Heather’s, Kevin Platt, agreed to serve as the sperm donor,” wrote Justice Gurich, but after donating his sperm, was not an active participant in the relationship between the women and their child.   Until the break-up of the couple years later and the resulting litigation, Kevin, who was married and had children from his marriage, did not have a relationship with the child.  After the break-up and the ensuing litigation, Kevin got involved and began to establish a relationship with the child.

The child was born in July 2007, either years before the Supreme Court decided Obergefell and a 10th Circuit decision, for which cert had been denied, resulted in marriage equality being available in Oklahoma.  The women’s relationship ended in April 2015, as the marriage equality issue was coming to a head in the courts.  Heather left the home they had shared, taking the child with her.  Although she allowed Lori regular visitation for seven months, Heather “suddenly denied Lori any further contact with their daughter,” wrote Gurich. “Since that time, Lori has neither seen nor spoken with J.L.”

Lori filed suit in December 2015, petitioning for an adjudication of the child’s custody, visitation, and child support, relying on the doctrine of in loco parentis, which the Oklahoma courts had recognized to some extend in prior same-sex parent disputes of this nature.  Heather objected to the petition “and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings.  Additionally, both Heather and Kevin brought cross-claims in the action, requesting the trial court’s determination that Kevin was J.L’s ‘biological and natural father’ and therefore entitled to full parental rights of custody, visitation, and support,” even though Kevin “was not demonstrably involved in J.L.’s life” before the lawsuit began.  Heather and Kevin both challenged Lori’s standing to bring the action, and the trial judge actually agreed, interpreting the state’s existing precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (Okla. 2015), as requiring the sperm donor to “consent to, and encourage, the non-biological partner’s parental role” in order to find parental standing for the co-parent. In this case, the sperm donor was a third party custody claimant as well and opposing Lori’s petition. The Court of Civil Appeals affirmed the trial court’s dismissal of Lori’s petition.  The Oklahoma Supreme Court granted certiorari “to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same.”

First, the court found that the lower courts had misconstrued its earlier holding, which it insisted did not empower the sperm donor to stand as a barrier to the co-parent’s standing in a case like this one.  Going further, the court found its prior precedents using the doctrine of in loco parentis to be inadequate for present purposes, particularly in light of the U.S. Supreme Court’s concern, expressed in Obergefell v. Hodges, that children being raised by same-sex parents should not have to suffer their families being considered as “lesser” to traditional heterosexual families.

“In announcing today’s decision,” wrote Justice Gurich, “we are mindful of the need to establish practical guidelines for state courts.  We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate – by a preponderance of the evidence – that he or she has engaged in family planning with the intent to parent jointly[,] acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child.  As always, a court shall assess these factors with the best interests of the child as its foremost aim.  When a continuing relationship with the non-biological parent is in those interests, a court must honor its validity and safeguard the perpetuation of that bond.  In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel.”

The court specifically rejected the use of in loco parentis as the deciding doctrine in such cases.  Justice Gurich wrote that “in loco parentis – at root, a legal fiction – is ‘by its very nature, a temporary status.’  Temporary and uncertain parental status only exacerbates the frequency of cases like today’s and creates an inherently more unstable environment for the children of same-sex couples.  Their children see them as mom or dad.  The law should treat them as such.”  The court asserted that its holding was “consonant with the constitutional protections guaranteed in Obergefell.”

In his dissent, Justice Darby argued that the case could be resolve in Lori’s favor by a finding that the requirements of Ramey v. Sutton had been met in this case and that Lori could be accorded in loco parentis standing.  However, he argued, the court’s reformulation of the rules for finding standing for co-parents was unnecessary, and this an “advisory opinion,” and “This Court does not issue advisory opinions.”

Lori Schnedler is represented y Christopher U. Brech of McDaniel Acord & Lytle PLLC, Tulsa, and Michael F. Smith of McAfee & Taft, also Tulsa.  Heather Lee is represented by Bryan J. Nowling, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., also of Tulsa.  “No appearance for Kevin Platt, Third Party Defendant/Appellee,” states the clerk’s summary.

Manhattan Appeals Court Revives Kelly Gunn’s Custody Lawsuit Against Circe Hamilton

Posted on: July 2nd, 2018 by Art Leonard No Comments

A five-judge panel of the New York State Appellate Division, First Department, based in Manhattan, has revived a lawsuit by Kelly Gunn, who is seeking joint custody of a child adopted by her former partner, Circe Hamilton. New York Supreme Court Justice Frank Nervo had dismissed the lawsuit on April 13, 2017, finding that despite her close relationship with the child, Gunn was not a “parent” under New York’s Domestic Relations Law, so lacked “standing” to sue for custody or visitation.  But the appellate court unanimously ruled on June 26, 2018, in an opinion by Justice Judith J. Gische, that Gunn should have another chance to call upon the equitable powers of the court to recognize her relationship with the child.  In re K.G. v. C.H., 2018 WL 3118937, 2018 N.Y. App. Div. LEXIS 4617, N.Y. Slip Op 04683.

This is just the latest of a series of opinions dating back more than a quarter century, grappling with the question of when the courts should recognize parental standing where an unmarried same-sex couple was raising a child together, broke up, and the birth or adoptive parent resisted their former partner’s attempt to continue in a parental role with the child.

In 1991, the highest New York court’s answer to the question was “never,” in the case of Alison D. v. Virginia M. The Court of Appeals said then that only a person related to the child by blood or adoption could have standing to seek custody or court-ordered visitation, giving a narrow interpretation to the word “parent” as used in the statute, which did not itself define the term.  Then-Chief Judge Judith Kaye wrote a dissent that was widely quoted by courts in other states as they adopted legal theories to allow these “second parents” to sue for custody or visitation rights.  Judge Kaye argued that the court’s decision failed to take account of the reality of non-traditional families, including those headed by LGBT couples, and would ultimately be harmful to the best interests the children, which courts would be precluded from considering if “second parents” did not have standing to bring the cases.

But the New York appellate courts stood firmly opposed to allowing such lawsuits until August 2016, when the Court of Appeals modified its position in the case of Brooke S.B. v. Elizabeth A. C. C. In that case, the court focused on a written agreement that two women made to jointly undertake the creation of a new child through donor insemination for them to raise together, and found that where the couple had gone through with their agreement, had the child, and raised it together for some time before splitting up, it was appropriate to allow the second parent to seek custody or visitation so that a court could determine whether it was in the child’s best interest to continue the second parent’s relationship with the child.

The court’s opinion in Brooke S.B., written by the late Judge Sheila Abdus-Salaam, was narrow and cautious, announcing a ruling based on the facts of that case, and leaving to later development other possible theories for second parents to use. In one case decided shortly after, the court accepted a “judicial estoppel” theory, where the birth mother had sued her former partner for child support, alleging that she had a parental obligation.  When the former partner than sued to assert parental rights, the Court of Appeals said that the birth mother could not deny her former partner’s parental status, which would be inconsistent with her position in the earlier case, even though the parties had not made a formal agreement like the one in Brooke S.B..

Kelly Gunn and Circe Hamilton, who had been together since 2004, agreed in 2007 that they would undertake an international adoption and raise a child together as a family. The plan was that Hamilton would adopt a child overseas, bring the child home to New York, and that Gunn would then complete a “second parent” adoption, a procedure which has been possible in New York for many years.  However, these plans had not come to fruition when the women’s romantic relationship ended in December 2009.

In 2010, Gunn and Hamilton signed a separation agreement negotiated with the assistance of lawyers, formally ending their cohabitation and romantic relationship, and dividing up their assets (including real property). Despite this breakup, Hamilton continued to deal with adoption agencies and eventually did adopt a child overseas with Gunn’s encouragement in the summer of 2011.  Gunn was in Europe on business at the time and met Hamilton and the child in London, from where they flew back to New York.  Although the women’s romantic relationship had ended, they had remained friends, and there is an extensive record of communications between them, which the trial court considered in reaching a determination that the 2007 agreement had not survived the breakup of the relationship.

Despite the breakup, Gunn was eager to be involved in the child’s life, and Hamilton accommodated her by allowing frequent contact, resulting in Gunn forming an attachment to the child. In August 2016, around the time that the Court of Appeals had overruled the Alison D. decision in the Brooke S.B. case, Hamilton, a British native, announced that she was planning to move back to England with the child and Gunn quickly sprang into action, filing this lawsuit and seeking a temporary order requiring Hamilton to remain in New York with the child while the case was litigated.  Gunn claimed that under the Brooke S.B. case, she had “standing” to seek joint custody and visitation rights because of the 2007 agreement the women had made.

Justice Nervo did not dismiss the case outright, and there was a temporary order, but after a lengthy trial he determined that the 2007 agreement had not survived the women’s breakup, and that by the time Hamilton adopted the child, she was acting on her own. The judge concluded that Gunn was a friend who had formed an attachment with the child, but not a “parent” within the meaning of the Domestic Relations Law, so she did not have standing to seek any parental rights.

The decision proved controversial from the moment it was announced. Despite the narrowness of the Court of Appeals ruling in Brooke S.B., that court had acknowledged the possibility that in a future case it might be appropriate to recognize parental standing in the absence of an express agreement, using a legal doctrine called “equitable estoppel,” which has been recognized by courts in several other states in lesbian parent custody disputes.  Gunn argued that this was such an appropriate case.  However, Justice Nervo, having concluded that Gunn did not have standing under his interpretation of the Brooke S.B. decision, had ended the trial without letting Gunn present additional evidence that could be relevant to an equitable estoppel claim.

Writing for the Appellate Division, Judge Gisch found that this may be the kind of case where equitable estoppel is appropriate. Certainly, the Court of Appeals’ Brooke S.B. decision did not foreclose the possibility.  While agreeing with Justice Nervo that the facts supported a conclusion that the 2007 agreement had terminated together with the parties’ romantic relationship well over a year before Hamilton adopted the child, and thus the case did not come squarely within the holding of Brooke S.B., nonetheless the court held that both parties should have the opportunity to present evidence about whether this would be an appropriate case to apply equitable estoppel.

Equitable estoppel might be a basis for Gunn to have standing to sue, but an ultimate decision on the merits would require the court to determine what would be in the best interests of the child. As to that, the court said, the child’s voice was an indispensable component, and was so far conspicuous by its absence from this case.   It is usual to appoint a person – frequently a lawyer – as “guardian ad litem” to represent the interest of the child in a custody and visitation dispute when the child is deemed too young and immature to speak for him or herself.  In this case, the child was born in 2011, and so by the time a hearing will be held will be seven years old – perhaps old enough to speak for himself, but that is something for Justice Nervo to determine.

The trial court will have to decide whether this is a case where Gunn had assumed a sufficiently parental role toward the child, with the consent or at least the acquiescence of Hamilton, to give her “standing” to be considered a parent for purposes of a custody and visitation contest, and then whether, under all the circumstances, it would be in the best interest of the child for Gunn to continue playing a parental role in the child’s life with the court ordering Hamilton to allow this relationship to continue.

Gunn had asked to have the case assigned to a different judge, but the Appellate Division declined to do so, without explanation.

Gunn is represented by Robbie Kaplan and her law firm, Kaplan & Company, as well as lawyers from Morrison Cohen LLP and Chemtob Moss & Forman LLP. Hamilton is represented by lawyers from Cohen Rabin Stine Schumann LLP.  The LGBT Law Association Foundation of Greater New York submitted an amicus brief to the court, with pro bono assistance from Latham & Watkins LLP, not taking sides between the parties but discussing the possible routes open to the court in applying the Brooke S.B. case to this new situation.

 

Supreme Court Rules that Same-Sex Spouses are Entitled to Be Listed on Birth Certificates

Posted on: June 26th, 2017 by Art Leonard No Comments

When a child is born to a woman married to another woman, both women should be listed as parents on the child’s birth certificate. So ruled the Supreme Court, voting 6-3 and reversing a decision by the Arkansas Supreme Court on the last day of its October 2016 Term, which was coincidentally the second anniversary of the Court’s historic marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which provides the basis for this new ruling in Pavan v. Smith, No. 16-992 (June 26, 2017), reversing 505 S.W.3d 169 (2016).

The petitioners in this case were two married same-sex couples, Leigh and Jana Jacobs and Terrah and Marisa Pavan. Both couples resided in Arkansas when their children were born in 2015, having previously married out of state.  Both couples filed paperwork with the state seeking birth certificates listing both mothers as parents.  The state turned them down, issuing birth certificates listing just the birth mothers and leaving the space for fathers blank.

The state’s Health Department argued that this was compelled by a state statute that provides that when a married woman gives birth, her husband will be listed on the birth certificate. (This is frequently referred to as the parental presumption.) This is so even if the woman conceives through donor insemination and her husband is not the biological father of the child, or even if some other man got the wife pregnant.  Incredibly, the Health Department sought to justify its refusal to name both parents on birth certificates by saying that the purpose of the birth certificate is to record biological lineage, which is pretty strange if husbands get listed regardless of their biological relation to the child.  Furthermore, Arkansas, like other states, issues amended birth certificates if children are adopted, listing their new legal parents, again regardless of the fact that one or both of the adoptive parents are not biologically related to the child.

The women sued the Commissioner of the health department and the trial court agreed with them that this result was unconstitutional under Obergefell, because the statute “categorically prohibits every same-sex married couple from enjoying the same spousal benefits which are available to every opposite-sex married couple.” In Obergefell, the Supreme Court ruled that same-sex couples have the same right to marry as opposite-sex couples, which means they are entitled to be treated the same by the state for all reasons of law.

The Arkansas Supreme Court was divided in this case. A majority sided with the Health Department, buying the incredible argument that birth certificates are supposed to be a record of biological lineage.  Wrote the Arkansas court, “The statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife,” and so it was consistent with Obergefell.  Not so, argued the dissenters, writing that under Obergefell “a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple.”

The majority U.S. Supreme Court agreed with the dissenters, finding this case so clear that it simultaneously granted the petition for review and issued a decision, without waiting for briefing on the merits or oral argument. The decision was issued “Per Curiam” (Latin for “by the Court”) without identifying an individual justice as its author.

The Court concluded that the Arkansas Supreme Court’s decision “denied married same-sex couples access to the ‘constellation of benefits that the State has linked to marriage,’” in violation of the Obergefell ruling. Under Arkansas’s statute, “same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.  Obergefell proscribes such disparate treatment.”

The Court pointed out that in the Obergefell decision it had included “birth and death certificates” in its list of “rights, benefits, and responsibilities” of marriage to which same-sex couples are entitled on the same basis as different-sex couples.   “That was no accident,” said the Court, as “several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates.  In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.”  The Court said this applied with “equal force” to the Arkansas statute.

Rejecting Arkansas’s argument that birth certificates were all about biological relationships, the Court insisted, to the contrary, that “Arkansas law makes birth certificates about more than just genetics,” citing as a prime example the provision involving donor insemination. “Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.  Having made that choice,” the Court continued, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”  The case was sent back to the Arkansas courts for “further proceedings not inconsistent with this opinion.”

The Per Curiam Court included all of the justices who had voted in the majority in Obergefell plus Chief Justice John Roberts, who was the principal dissenter in the marriage case. Roberts’ vote in this case is notable, given the vehemence of his dissent in Obergefell, but apparently, accepting that Obergefell is now a precedent and that there are not five votes on the Court to overturn it, Roberts was willing to agree that the Arkansas Supreme Court’s ruling was inconsistent with it.

Not so the three dissenters, Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote a dissent on their behalf. When Gorsuch was nominated, it was predicted that he would be as bad for LGBT rights as his predecessor, Justice Antonin Scalia, if not worse. His dissent here vindicated that view.

First, he scolded the Court for deciding the case summarily, arguing that the law in question is not “settled and stable.” He did not deem it clear that Obergefell would invalidate state laws restricting who could be listed on a birth certificate, when justified by a policy of recording biological ties.

He took a narrow view of Obergefell, as some lower courts have done in birth certificate litigation around the country, arguing that “nothing in Obergefell spoke (let alone clearly) to the question whether [the Arkansas statute], or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.”  This is, of course, incorrect, as the Per Curiam opinion demonstrated.  The state’s rules, requiring that the husband of a woman who conceives through donor insemination be listed as the child’s father, clearly do not “ensure” that the biological parents of a child are listed on the certificate.  Indeed, as the Court noted in passing in its Per Curiam opinion, the “rules” in Arkansas even provide that if the birth mother, her husband, and the actual biological father of the child all agree in sworn statements, the actual father can be listed instead of the husband, but otherwise the husband would be listed.  Clearly, listing people on birth certificates in Arkansas under current statutes is not all about biological relationships.

Gorsuch also noted that since this litigation has been under way Arkansas officials have come around to agree that the birth mother’s spouse should be listed on the birth certificate. Since the state has now agreed (without amending its statute) that it should list same-sex spouses on birth certificates, Gorsuch professes to see no reason for this ruling.  “Indeed,” he wrote, “it is not even clear what the Court expects to happen on remand that hasn’t happened already.  The Court does not offer any remedial suggestion, and none leaps to mind.  Perhaps the state supreme court could memorialize the state’s concession.”  Indeed, exactly so, the proper action on remand is a judicial declaration that same-sex spouses are entitled to be listed on birth certificates, and a permanent injunction requiring that result. This is not superfluous, since the state legislature has not amended the statute.

The Court’s decision will affect pending litigation elsewhere. In Arizona, the state’s intermediate court of appeals ruled on June 22 in Turner v. Steiner, 2017 WL 2687680, that a lesbian co-parent was not entitled to be listed on a birth certificate, conflicting with a ruling by another panel of the court of appeals, McLaughlin v. Jones, 382 P.3d 118 (2016), which was recently granted review by the Arizona Supreme Court.  The Turner decision cited the Arkansas Supreme Court’s ruling in this case, as well as a Wisconsin Supreme Court ruling from 2015, In re P.L.L.-R., 876 N.W.2d 147.   Plaintiffs in the Wisconsin case should be able to file a new suit based on Pavan, if necessary, but perhaps Pavan v. Smith will encourage state officials to drop their obstructions and accord equal treatment to same-sex married couples.

The plaintiffs in this case were represented by the National Center for Lesbian Rights, with local counsel Cheryl Maples of Heber Springs, Arkansas. Attorneys from the Washington and Boston offices of Ropes & Gray, LLP, worked on the case in collaboration with NCLR, and R&G’s Douglas Hallward-Driemeier, who shared the oral argument in the marriage equality cases two years ago, was Counsel of Record who might have argued the case had the Court scheduled a hearing.

NY Family Court Judge Takes Co-Parent Rights a Step Further in Filiation Case

Posted on: June 16th, 2017 by Art Leonard No Comments

Rockland County Family Court Judge Rachel E. Tanguay, ruling on a question of first impression under New York Law, decided that when a lesbian couple had children together and raised them together as a family for several years before splitting up, the co-parent was entitled to an Order of Filiation recognizing her parental status for all purposes. Judge Tanguay’s ruling in A.F. v. K.H., 2017 N.Y. Slip Op. 27196, 2017 WL 2541877 (Fam. Ct., Rockland Co., May 25, 2017), takes New York law one step further than the Court of Appeals’ landmark 2016 decision in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, which had overruled a 25-year-old precedent to hold that a co-parent can seek custody and visitation in such a situation.

A.F. and K.H. became registered domestic partners on August 25, 2005, according to the findings of a Family Court Attorney Referee at an earlier stage of this case, and they decided to have children, with K.H. becoming pregnant through donor insemination with sperm from an anonymous donor. The women had two children whom they raised together until separating in July 2011, ironically right around the time that the New York Marriage Equality Law went into effect.  There was no dispute that they considered each other to be “parents” of both children.  In fact, when the children were born they were given A.F.’s surname. But after the break-up, K.H. resisted A.F.’s assertion of parental rights and even took the step of getting the court to change the children’s surname to hers.  A.F. sued to preserve her contact with the children.

At that time, the binding precedent in New York courts was Alison D. v. Virginia M., 77 N.Y.2d 651, a Court of Appeals ruling from 1991, which had been recently reaffirmed by the court in 2010, under which a person in the position of A.F. was deemed to be a “legal stranger” to the children who did not have standing under the Domestic Relations Law to seek custody or visitation. As a result, A.F.’s lawsuit was unsuccessful, with the Appellate Division affirming the trial court’s dismissal of her case in 2014.  From that point forward, A.F. had no contact with the children until her new lawsuit got underway.

After the Court of Appeals decided Brooke S.B., overruling Alison D. and providing that under certain circumstances a lesbian co-parent would have standing to seek custody and/or visitation with children she had been raising with her former partner, A.F. decided to try again. In her new custody case, she also sought a formal Order of Filiation from the court that would confer on her full parental rights for all legal purposes, not just custody and visitation.  This ultimately was the sticking point in the case, because after it was clear that the Family Court was going to apply Brooke S.B. to allow A.F. to revive her custody and visitation claims, K.H. agreed to a negotiated settlement about custody and visitation.

That left the Order of Filiation as the only issue for Judge Tanguay to decide. K.H., and the attorney appointed by the court to represent the children’s interest, continued to strongly oppose such an order.  Under an Order of Filiation, A.F. would have equal rights to participate in all significant parenting decisions, extending to such matters as education, medical care, inheritance and other circumstances where parental status may be significant, and she could also object to any adoption of the children by a new partner or spouse of K.H.

In Brooke S.B., the court carefully acknowledged “limited circumstances in which such a person has standing as a ‘parent’ under Section 70” of the Domestic Relations Law. “Specifically,” wrote Tanguay, “the Court rejected ‘a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital ‘parents’ who are raising children.”  Instead, in a cautious way, the court narrowed its decision to the precise facts of the case before it, and wrote, “We stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation.”  Seizing upon this language, K.H. argued that the Court of Appeals had not ruled that a person in A.F.’s position was entitled to be recognized as a parent for all purposes.

“At first blush,” wrote Tanguay, “it would appear that the Court of Appeals in Brooke was attempting to limit its holding to conferring standing to a party only.” But, she pointed out, the court reached this point by “broadening the definition of ‘parent’ to include a non-biological, non-legal ‘parent’ under certain circumstances.”  And the court got there by tracing the evolution of case law and statutes, including, of course the 2011 Marriage Equality Act.  Indeed, the Brooke S.B. decision came more than a year after the U.S. Supreme Court ruled that same-sex couples have a constitutional right to marry, in an opinion that stressed the importance to children being raised by same-sex couples of having two legally recognized parents.

In Brooke, itself, Judge Eugene Pigott, concurring with the court, wrote, “Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation.” So the issue in this case was whether to bring that one step further to cover same-sex couples who had their children and split up before marriage equality was available in New York.  Although A.F. and K.H. were registered domestic partners, that status under local law did not import any legal parental rights, which are a matter of state law.  Ultimately, Judge Tanguay concluded, the lack of a modern statutory scheme that would explicitly handle this situation is “manifestly unfair not only to the non-biological parent, but to the children who deserve to have a two-parent family when same was intended at their conception.”  The best interests of the children should be the overriding factor.

“The majority in Brooke concluded its opinion by stating, ‘We will no longer engage in the deft legal maneuvering necessary to read fairness into an overly-restrictive definition of parent that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles,’” wrote Tanguay, who continued: “This court will not allow legal maneuvering that permits A.F. to be a ‘parent’ for purposes of custody, visitation and child support, but without more.  It is simply inequitable, and not consistent with prevailing common law as set for herein.”

She granted A.F.’s petition and decreed that the court “issue an Order of Filiation for each child listing A.F. as their legal parent forthwith.”

A.F. is represented by Sherri Donovan of New York City. K.H. is represented by Adrienne J. Orbach of White Plains.  Shiza Khan of New City, N.Y., served as appointed Attorney for the Children.  K.H. was given 30 days to take an appeal from this decision, which was issued on May 25.  An appeal would not delay A.F.’s contact with the children, since the parties had stipulated an agreed-upon arrangement, so the only issue on appeal would be whether A.F. will be accorded all parental rights through the Orders of Filiation.

Manhattan Court Finds Former Same-Sex Partner of Adoptive Mother Lacks Standing to Contest Custody of the Child

Posted on: April 24th, 2017 by Art Leonard No Comments

Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place.  K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.).  In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department, in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.

Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling.  In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated.  This new case posed different facts.

In its Brooke S.B. ruling, written by the late Judge Sheila Abdus-Salaam, the Court of Appeals had cautiously abandoned its prior bright line test, under which a biologically-unrelated same-sex co-parent was treated as a legal stranger without standing to seek custody or visitation, making an exception for situations where a parental relationship was created by mutual consent within the context of donor insemination.  “Because we necessarily decide these cases based on the facts presented to us,” wrote Judge Abdus-Salaam in that case, “it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement.  Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.”

Judge Nervo’s opinion referred to the parties by first initials, but press reporting after his opinion was released included their names.

Gunn and Hamilton “were in a relationship from 2007 to 2009, entering into a cohabitation agreement on May 18, 2007,” wrote the judge.  “It is undisputed that during their relationship, they entered into a plan to adopt and raise a child together.  It is also undisputed that the parties’ relationship deteriorated over time and they entered into a separation agreement on May 28, 2010.”

About ten months later, Hamilton learned that a child was available for adoption in Ethiopia and began to take the steps to complete the adoption.  Gunn claims that despite their separation, she facilitated the adoption through a substantial monetary payment as part of their separation agreement, which made it possible for Hamilton to “establish a home sufficient to pass inspection by the adoption agency.”  She also arranged a business trip to be able to travel with Hamilton and the child, Abush, on the London-to-New York part of Hamilton’s trip home with the child after obtaining custody of him in Ethiopia.  Gunn also presented evidence of her continuing involvement with the child after the return to New York, although Gunn conceded that “her involvement with the child was limited because [Hamilton] would disapprove.”

On the other hand, Hamilton argued that the couples’ plan to adopt a child and raise the child together “dissolved contemporaneously with the dissolution of the parties’ relationship.”  She argued that Gunn’s involvement after Hamilton adopted the child was “only a supportive role as a close friend” of Hamilton and the child.  She contended that Gunn was “merely a godmother,” not a parent.  She also argued that she did not “encourage, facilitate or condone a parental relationship” between Gunn and the boy, who is now seven years old.

Thus, this case did not precisely map the factual contours approved by the Court of Appeals in the Brooke S.B. case.  In attempting to adapt that ruling and apply it to these facts, Judge Nervo interpreted the earlier case to extend to an adoption situation, but only if the plaintiff could show, by clear and convincing evidence, that the parties had planned to adopt the child and raise it together and carried out their plan within the context of their continuing relationship.  While these parties had such a plan prior to their separation, he found, in order to meet this test, the plan had to have continued through the adoption process and the raising of the child, which he held did not occur in this case.

The timing of Gunn’s lawsuit is interesting.  Although Hamilton adopted Abush in 2011, Gunn did not file her lawsuit until September 1, 2016, two days after the Court of Appeals decided Brooke S.B.  Prior to that decision, of course, her suit would have been blocked by the precedent that the Court of Appeals overruled, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991).  In an April 20 article about the case, the New York Times reported that Gunn went to court “to prevent her former partner . . . from moving to her native London” with the child.  Gunn sought immediate relief when filing her complaint, which first went to Justice Matthew F. Cooper, who issued an interim order restraining Hamilton from relocating Abush to London while the case was pending.  The matter was then assigned to Justice Nervo, who scheduled a hearing to begin just a week later, on September 8.  The hearing continued sporadically until February 16, 2017. Hamilton had responded to the complaint on September 6 with a motion to dismiss the case.  Gunn finished presenting her witnesses on November 23.  After evaluating Gunn’s evidence, Judge Nervo denied Hamilton’s motion to dismiss, finding that Gunn’s evidence, as yet uncontradicted, had established what lawyers call a prima facie case, a basis for concluding that she had a potential claim to parental standing.

However, after hearing Hamilton’s evidence, which ended on February 16, Justice Nervo concluded the factual and legal issues against Gunn, granted Hamilton’s motion to dismiss, denied Gunn’s motion and vacated the interim orders that had been issued by Justice Cooper. He also dissolved interim orders that had enabled Gunn to continue seeing the child while the case was ongoing.  However, recognizing that Gunn would likely appeal and could have grounds to argue that the Court of Appeals’ precedent should be given a broader reading, Nervo stayed his order for twenty days.  A prompt appeal and petition to the Appellate Division to preserve the interim relief might preserve the status quo while an appeal is considered.

Justice Nervo’s opinion includes a lengthy summary of the testimony presented by both parties, which led the judge to conclude that Gunn had fallen short of showing by clear and convincing evidence that she had a parental relationship with the child based on a mutual agreement with Hamilton.  “Upon the presentation of the evidence of both parties over 36 days of testimony, constituting a hearing transcript of 4,738 pages, 215 exhibits on behalf of petitioner and 126 exhibits on behalf of respondent, the court finds the petitioner has on numerous occasions stated that she did not want to be a parent and gave no indication to either respondent or third parties that she either wanted this role or acted as a parent,” wrote Nervo.  “Therefore, she has failed to establish by clear and convincing evidence that she has standing as a parent under Domestic Relations Law Section 70, as established In the Matter of Brooke S.B. v. Elizabeth A.C.C.”

The court never addressed the best interest of the child, usually a key finding in a custody dispute, because in order to put that issue into play, a plaintiff has first to establish her status as a parent or, under New York cases, show extraordinary circumstances in order to invoke the court’s authority to require a biological or adoptive parent to engage in a contest about the best interest of her child.  Part of Gunn’s argument on appeal will likely be that Brooke S.B. has implicitly overruled the extraordinary circumstances requirement in cases involving same-sex partners who had jointly planned to raise a child together, even if the case does not involve donor insemination or a continuous relationship of the women prior to the adoption.

Reading through Judge Nervo’s summary of the evidence, which is unlikely to be upset on appeal, as appellate courts generally refrain from second-guessing the factual findings of trial judges in custody and visitation cases unless there is an appearance of substantial bias against a party or failure to account for significant evidence in the hearing record, it sounds like he concluded that although Gunn had formed a relationship with Abush and there were some indications that it was deeper than a mere acquaintanceship or babysitter kind of relationship, on the other hand there was significant evidence that Gunn had expressed reservations during her relationship with Hamilton about the adoption plans and had never directly communicated to Hamilton after the adoption that she desired to take on the responsibility of being a co-parent of the child.  Since the Court of Appeals emphasized in its decision that standing would arise from a mutual agreement between the child’s biological or adoptive parent and her same-sex partner, and there was no sign of such an agreement at or after the time of this adoption, the case could not be made to fit precisely into the Court of Appeals precedent.

On the other hand, it may be open to the Appellate Division to take a different view, especially since the Court of Appeals disclaimed making a ruling on factual situations different from those in the cases it was deciding.  Clearly, the Court of Appeals rejected the bright line test of the old Alison D. v. Virginia M. case.  Whether it will countenance a broader exception to the standing rules than it carved out in Brooke S.B. is uncertain.

Gunn’s attorney, Nancy Chemtob, told the New York Times, “I believe that this decision doesn’t follow Brooke.”  The Times reported that “Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage.  ‘That would be scary to parents,’ she said.”

 

Arkansas Supreme Court Rejects Challenge to Discriminatory Birth Certificate Statutes

Posted on: December 12th, 2016 by Art Leonard No Comments

Although the U.S. Supreme Court issued a sweeping ruling for marriage equality in Obergefell v. Hodges on June 26, 2015, pockets of resistance remain in the states. The latest manifestation of this phenomenon comes from Arkansas, where the state’s Supreme Court ruled on December 8 by a 4-3 vote that same-sex couples do not enjoy the same constitutional rights as opposite sex couples when it comes to listing parents on birth certificates.  In Smith v. Pavan, 2016 Ark. 437, the majority of the court rejected a constitutional challenge to two Arkansas statutes under which wives of birth mothers are denied equal treatment with husbands of birth mothers in the matter of being listed as parents on birth certificates.  Three members of the court disagreed with the majority to varying extents in separate opinions.

 

The case was brought by three lesbian couples. Two of the couples, Marisa and Terrah Pavan and Leigh and Jana Jacobs, were married out-of-state and then had a child born in their residential state of Arkansas.  The third couple, Courtney Kassel and Kelly Scott, had a child in Arkansas and married shortly thereafter.  In all three cases, the Department of Health, headed by named-defendant Dr. Nathaniel Smith, refused to list the spouse of the birth mother on the birth certificate, relying on gender-specific Arkansas statutes that provide for listing husbands but not wives of birth mothers.

 

The women, represented by attorney Cheryl Maples with amicus assistance from the ACLU of Arkansas and the national ACLU LGBT Rights Project, filed suit against Smith. Pulaski County Circuit Judge Timothy Davis Fox accepted their argument that Dr. Smith, who was also a named defendant in Wright v. Smith, the Arkansas state court marriage equality case, was bound by the decision in that earlier case, which had struck down as unconstitutional not only the state’s ban on same-sex marriage but also “all other state and local laws and regulations identified in Plaintiff’s complaint or otherwise in existence to the extent they do not recognize same-sex marriages validly contracted outside Arkansas, prohibit otherwise qualified same-sex couples from marrying in Arkansas or deny same-sex married couples the rights, recognition and benefits associated with marriage in the State of Arkansas.”

 

The case appeared clear to Judge Fox. The final court order issued in Wright v. Smith required that Arkansas treat same-sex marriages as equal to different-sex marriages in all respects under state law, and Smith was precluded from trying to re-litigate that issue in this case.  Smith’s appeal from the trial court’s ruling in Wright v. Smith was pending when the U.S. Supreme Court announced its ruling in Obergefell, after which the Arkansas Supreme Court dismissed that appeal as moot, ending a stay that it had granted on the trial court’s Order.

 

Furthermore, Judge Fox found support for his decision in favor of the women in the Obergefell opinion itself, noting that Justice Anthony Kennedy had mentioned “certificates of birth and death” as one of the benefits of same-sex marriage. Kennedy had written:

 

“The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. . . . The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

 

To Judge Fox, this meant that married same-sex couples are entitled to the same rights of marriage as different sex couples, including the same spousal rights regarding birth certificates.

 

But a majority of the Arkansas Supreme Court insisted that the Obergefell decision, and the state court Wright decision, had not decided this issue. An opinion by Justice Josephine Linker Hart for four members of the seven-member court insisted that the only questions decided by these prior cases were whether same-sex couples could marry or have their out-of-state marriages recognized.   Viewed this way, the Wright v. Smith decision would not preclude Smith from applying Arkansas statutes to refuse to list the same-sex spouses on birth certificates unless the court were to decide independently that doing so violated the constitutional rights of the spouses.  This the court was unwilling to do.

 

Since Judge Fox had ordered Smith to issue new birth certificates listing both mothers, and that order had not been stayed, the Supreme Court decided that the case should be treated as a facial challenge to the constitutionality of the statutes. Because the plaintiffs had actually received the birth certificates they sought, any “as applied” challenge was deemed to be moot.

 

One of the challenged statutes provides that when a child is born to a married woman, her husband will be listed on the birth certificate as the child’s father unless a court has determined either that another man is the child’s biological father, or the mother, the biological father, and her husband have executed affidavits establishing that the husband is not the biological father. The other challenged statute provides that when a child is born to an unmarried woman, only she will be listed on the original birth certificate, but a new birth certificate can be issued listing the biological father if the child is “legitimated” by the biological parents subsequently marrying, or a court determines who is the biological fathers.

 

The court insisted that both statutes are clearly intended to record historical facts about the biological parents of a child, and that the state has a legitimate reason to want the original birth certificate to correctly list these historical facts. “In our analysis of the statutes presented above,” wrote Justice Hart, “it is the nexus of the biological mother and the biological father of the child that is to be truthfully recorded on the child’s birth certificate.

 

Quoting from an affidavit submitted by Melinda Allen, the state’s Vital Records Registrar, the court adopted her contention that the recordation of biological parents was “critical” to the department’s “identification of public health trends,” and she asserted that “it can be critical to an individual’s identification of personal health issues and genetic conditions.” She noted that in adoption and surrogacy situations, the biological parents are listed on original birth certificates, which are then “sealed” when new certificates are issued showing adoptive or intended parents, since the state deems it essential that a permanent record of biological parentage be preserved.

 

Justice Hart said that Judge Fox had “conflated distinct categories of marriage, parental rights, and vital records,” and that the issue in this case was not who can be a parent but rather who must be listed on a birth certificate. “On the record presented,” she wrote, “we cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.”

 

As to an equal protection challenge, the court found that the same-sex spouse is not similarly situated to the husband, and “it does not violate equal protection to acknowledge basic biological truths”. In this case, the majority found, “the challenged classification serves important governmental objectives” – the factual record of biological parentage for the reasons asserted by Melinda Allen in her affidavit.

 

The court pointed out that there was another statute that might be invoked in this situation, governing intended fathers in cases involving “artificial insemination.” In such cases, if the mother’s husband consented in writing to her insemination with donated sperm, the child would be “deemed the legitimate natural child of the woman and the woman’s husband” and he would be listed on the birth certificate.

 

At oral argument in this case, counsel for Dr. Smith conceded that this statute violated equal protection, since in this case both the husband and the same-sex spouse of the birth mother were not biologically related to the child, and thus similarly situated.   Smith’s attorney argued that if a case was brought under that statute, the court “could resolve many of the concerns raised by the [women] by amending the wording of the statute,” but Justice Hart rejected this suggestion, insisting that “this court is not a legislative body and it cannot change the wording of the statute.”  Furthermore, since the plaintiffs did not invoke the artificial insemination statute in this case – possibly because they did not have written authorization for the insemination procedure as required by the statute – the trial court did not rule on the statute’s constitutionality, so the issue of its constitutionality was not properly before the court.

 

In a concluding paragraph, the court “admonished” Judge Fox for having made a public statement that if the Arkansas Supreme Court granted a stay of his order in this case, it would be depriving people of their constitutional rights, and that the court had deprived people of their constitutional rights in a separate matter. “A remark made to gain the attention of the press and to create public clamor undermines ‘public confidence in the independence, integrity, and impartiality,’ not only of this court, but also of the entire judiciary,” wrote Hart, and Fox was formally “admonished” for “his inappropriate comments made while performing the duties of his judicial office.”

 

Chief Justice Howard Brill, in a separate opinion, agreed with the majority that Obergefell was a narrow holding that same-sex couples have a right to marry, and thus did not directly settle the question of birth certificates. However, he wrote, “The question here is the broader impact of that ruling as it affects birth certificates,” and, he wrote, “The logical extension of Obergefell, mandated by the Due Process Clause and the Equal Protection Clause, is that a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple,” because “the right to a birth certificate is a corollary to the right to a marriage license.”  He prefaced his opinion with a quote from the lyrics of Bob Dylan’s song “The Times They Are A-Changin’,” and concluded by arguing that it was up to the legislature to amend the existing laws to come into compliance with Obergefell.  “The times they are a-changin’,” he wrote.  “All three branches of the government must change accordingly.  It is time to heed the call.”

 

In her separate opinion, Justice Rhonda K. Wood joined the court in reversing the case on the ground of “prudential-mootness” because the plaintiff couples had received their revised birth certificates on the order of Judge Fox. At the same time, she wrote, “I encourage the legislature to address the relevant birth certificate statutes in the upcoming session to avoid a plethora of litigation and confusion for the courts.”  She pointed out that this litigation had actually stimulated the Health Department to modify its procedures, noting that Allen’s affidavit stated that the department “will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact,” although the parties disputed at oral argument about how consistently this new policy was being implemented.  She also noted Smith’s concession at the oral argument that the artificial insemination statute, as written, violated equal protection, and that if the department administers it appropriately, “any legal challenge in this regard would be moot.”  Judge Wood emphasized the fluidity of the situation on the ground and the likelihood that things had changed since Allen made her affidavit.  This, to her, would justify the court as treating the appeal as moot and sending the case back to the circuit court for a new hearing to determine the current facts, which might make it unnecessary to issue a constitutional ruling.  However, departing from the majority, she wrote that in her view, “states cannot constitutionally deny same-sex couples the benefits to marital status, which include equal access to birth certificates,” and suggested that the legislature should amend the statute to comply with this conclusion.

 

Justice Paul Danielson dissented totally from the majority opinion, stating that he would affirm Judge Fox’s ruling, agreeing that Smith and Obergefell settled the matter and the statutes as written were clearly unconstitutional.

 

Justices Wood and Danielson dissented from the majority’s admonishment of Judge Fox. Justice Wood merely stated that she had not “participated” in the majority’s decision to admonish the judge. Justice Danielson wrote at length, arguing that the admonishment violated Judge Fox’s constitutional free speech rights, quoting a U.S. Supreme Court decision stating that “the operations of the courts and the judicial conduct of judges [are] matters of the utmost public concern.” The Supreme Court “has cautioned against repressing speech under the guise of promoting public confidence in the integrity of the judiciary,” wrote Danielson.  “In short,” he concluded, “the fact that members of this court have personally taken offense to the circuit judge’s remarks is not a sufficient basis for suggesting that those remarks violate our disciplinary rules.”

Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.

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.

 

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.

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.