New York Family Law Blog
This case calls upon the Appellate Court to consider the validity of a rule that was decided 25 years ago, in the Matter of Alison D. (77 NY2d 651 [1991]). In this case, an unmarried same-sex couple questioned the rights of responsibilities of having a child, in light of the fact that there was no biological connection between one of the parents and the child. This case discussed the rule that with an unmarried couple, a partner without a biological connection to a child is not considered the child’s parent in terms of standing to bring an action for custody or visitation due to the Domestic Relations Law sec. 70, 77 NY 2d 655). The Petitioners in this case ask for custody and visitation of the child. This court agrees that the rule that has been used through the years regarding this issue is no longer workable.
The parties entered into a romantic relationship and moved in with each other. In 2007, the Petition and Respondent registered as partners and later decided to have a child through artificial insemination. In February of 2008, the Respondent became pregnant. The Respondent had a child, and the Petitioner was there to support the Respondent in every way. The next several years were spent raising the child. But in 2012, they unfortunately decided to end their relationship.
In October of 2012, they began an action seeking child support from the Petitioner. The Petitioner denied any liability in the matter, and also countersued for visitation.
The court granted the child support petition and remanded the case to determine the Petitioner’s liability. The Supreme Court decided that the Petitioner was a parent for all intents and purposes, and was chargeable for support of the child. The Petitioner amended the visitation Petition and represented herself as a parent.
The Respondent moved to dismiss the Petition on the grounds that the Petitioner lacked standing to sue. The Family Court denies the respondent’s Motion to Dismiss the Petition via Alison D., and our decision in Debra H. v. Janice R (14 NY 3d 576), where the court didn’t foreclose a determination of standing based on judicial estoppel, as the prior judgement had determined that the Petitioner was a legal parent. The Respondent argued that the elements of judicial estoppel hadn’t been met.
The Family Court denied the Respondent’s Motion to Dismiss, (40 Misc 3d 219, 219-255 [Family Court Suffolk County 2013]. However, because of the Respondent’s support petition, the court concluded that the doctrine of judicial estoppel conferred standing on the Petitioner to request visitation with the child.
The court determined that this is a different situation than from Alison D because in those cases, the court didn’t discuss the situation where one party has argued inconsistent petitions. Here, the court determined that the Respondent was judicially estopped from arguing that the petitioner was not a parent based on sworn testimony in a prior proceeding where she took a different position because of her interest, in that case, was different. The Respondent filed an interlocutory appeal which was dismissed by the Appellate Division.
The Family Court held that a hearing on the Petition. The Court found that the Petitioner’s regular visitation with respect to the child would be in the child’s best interests.
The Family Court was affirmed (123 AD3d 1023, 1023-1027). The Appellate Court said that the Domestic Relations Law section 70 as discussed in Alison D, confers standing to seek custody or visitation only by the biological parent. Alison D. doesn’t preclude recognition of standing due to judicial estoppel.
This court found that a party who assumes a certain position in a prior legal proceeding and receives a judgment is prevented from assuming a contrary position in another action just because their interests have changed.
The Appellate Court agreed with the Family Court that the requirements of judicial estoppel had been met. The Respondent’s position in the support hearing was not consistent with their position in the visitation hearing. The respondent had won a favorable judgment based on a previous position and allowing the Respondent to maintain an inconsistent in the proceeding will prejudice the Petitioner. The Respondent was judicially estopped from denying Petitioner’s standing as a parent within the meaning of Domestic Relations Law sec. 70.
The court has argued that it has been 25 years since Alison D and the court has worked hard to change the unfair results that often occur as a result of Alison D and the court has worked hard to change these incongruent results. They are now faced with a situation where a nonbiological adopted parent may be estopped from claiming a percentage and paying child support.
Under the current legal climate, it is not possible for the same sex couple to have legal standing.
The court now faces the stigma of 100,000s of children that are being raised my same-sex couples. If you have a legal question regarding a similar issue or need to discuss a divorce or spousal support issue, speak with an attorney from Stephen Bilkis and Associates for guidance. We have offices to serve you throughout New York. Call today for a free consultation at 1-800-NYNYLAW.