New York Family Law Blog
Respondent is the biological mother of a six-year-old boy conceived through artificial insemination. Petitioner and the respondent met in 2002 and entered into a civil union in the State of Vermont, a month before the boy’s birth. Respondent repeatedly rebuffed petitioner’s requests to become the boy’s second parent by means of adoption.
A New York Custody Lawyer said after the relationship between petitioner and respondent soured they separated, respondent allowed the petitioner to have a supervised visitation with the boy each week on Sunday, Wednesday and Friday for specified periods of time, as well as daily contact by telephone. However, respondent began scaling back the visits she had cut off all communication between petitioner and the boy.
Petitioner then filed a case with the Supreme Court by order to show cause, seeking joint legal and physical child custody over the boy, restoration of access and decision making authority with respect to his upbringing, and appointment of an attorney for the child.
A New York Child Custody Lawyer said that after the hearing on the petitioner’s case, the judge signed the order to show cause, which set a briefing schedule, and the parties, at his instance, entered into a “so-ordered” stipulation that reinstated the three-day-a-week visitation schedule previously followed. A New York Criminal Lawyer said the stipulation required the boy’s nanny or a mutually agreed-upon third party to accompany him whenever he visit petitioner.
A New York Child Custody Lawyer said that as the Supreme Court later put it, few facts were undisputed at the hearings and in the parties’ submission, which differed substantially with respect to the nature and extent of petitioner’s relationship with the boy.
A Queens Family Lawyer said that petitioner acknowledge a case that has been decided by the Court way back in (Alison D. case) 1991, which held that only a child’s biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent, but claims the non-biological or non-adoptive parent’s right to invoke equitable estoppel to secure visitation or child custody, notwithstanding the decision in the abovementioned case. In support of the interpretation of this precedents petitioner cited and emphasized a case decided in (Shondel J.)1998, which held that a divorce proceeding in which the husband successfully invoked equitable estoppel to seek child custody and visitation with a child born to the wife prior to the marriage, whom he neither fathered nor adopted. Petitioner also urged the Supreme Court to consider the effect of the parties’ civil union.
In opposition to petitioner’s application, respondent stressed that she had always spurned petitioner’s entreaties to permit a second-parent adoption. She argued that the ruling in 1991 case which interpreted Domestic Relations Law, was not eroded or overruled by the 1998 case, a case involving a filiation determination and pointed out that the Legislature did not elsewhere enact any provision that broadens the provision regarding the standing to seek visitation or custody and observed that respondent conceived the boy prior to entering into the civil union with the petitioner in Vermont.
In a decision, the Supreme Court ruled in petitioner’s favor. A Nassau County Family Lawyer said the judge held that it was inconsistent to estopped a non-biological father from disclaiming paternity in order to avoid child support obligations, but preclude a non-biological parent from invoking equitable estoppels against the biological parent in order to maintain an established relationship with the child. Since, in either event the court’s primary concern should be furthering the best interests of the child.
Thus, the Supreme Court concluded that the facts alleged by petitioner, if true, established a prima facie basis for invoking the doctrine of equitable estoppels. In this regard, the judge considered the parties civil union to be a significant, though not necessarily a determinative factor in petitioner’s estoppel argument because, under Vermont law, parties to a civil union are given the same benefits, protections and responsibilities as granted to those in a marriage, which includes the assumption that the birth of a child during a couple’s legal union is extremely persuasive evidence of joint parentage. Hence, the Supreme Court continued the existing “so-ordered” stipulation permitting supervised visitation, and also granted petitioner’s request for appointment of an attorney to represent the child.
Respondent appealed the decision, and obtained a stay of the equitable-estoppel hearing ordered by Supreme Court, pending disposition of the appeal. The Appellate Division unanimously reversed on the law, vacated Supreme Court’s order, denied the petition, and dismissed the proceeding. In deciding in that manner, the court acknowledged that while the record indicated that petitioner served as a loving and caring parental figure during the first 2 1/2 years of the boy’s life, she never legally adopted him and, in accordance with 1991 case ruling, a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law. The Appellate Division commented that to the extent that denial of any right to equitable estoppel in this case might be considered inconsistent with the 1998 case ruling, its own reading of precedent was such that the doctrine of equitable estoppel may not be invoked where a party lacks standing to assert at least a right to visitation.
Based upon the abovementioned decision of the Court both petitioner and the attorney for the child asked the Appellate Division to stay the enforcement of the decision, so as to allow visitation over the boy to continue until further appellate proceedings were completed, and for leave to file an appeal. The Appellate Division denied the motion. Petitioner and the attorney for the boy separately asked the Court for leave to appeal and sought another stay of the decision. Thereafter, the Court signed a “so-ordered” stipulation continuing one-day-a-week visitation and granted petitioner’s appeal and approved the request for a further stay to the extent of reinstating and permitting enforcement of so much of Supreme Court’s order as allowed petitioner to have Sunday visitation with the boy.
The Court reaffirmed its holding in the 1991 case ruling, but reversed the Appellate Division’s order in this case for reasons of comity in light of petitioner’s status as the boy’s parent under Vermont law.
The issues in this case are whether petitioner, a non-biological and non-adoptive parent of the boy, has the right to visitation over him by reason equitable estoppels and the child’s best interest; and whether petitioner is considered as the boy’s parent under Vermont law; and in the event that she is, whether as a matter of comity she is his parent under New York law as well, thereby conferring he the right to seek visitation and custody over the child.
The Court in deciding the case insofar as to the question of equitable estoppel, held that in the 1991 case precedent, the provisions on the Domestic Relations Law did not confer standing on a biological stranger to seek visitation with a child in the custody of a fit parent. Petitioner urges the Court to exercise what she characterizes as long-standing common-law and equitable powers to recognize the parentage of a non-biological, non-adoptive individual on a theory of equitable estoppel and in the child’s best interest. As a consequence, petitioner asks the Court to revisit and either distinguish or overrule the decision in the 1991 precedent, a case that closely resembles this one factually.
The Court cited the provisions in Domestic Relations Law (permitting siblings and grandparents respectively to petition for visitation), the Court emphasized that where the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation and it gave the courts the power to determine whether an award of visitation would be in the child’s best interests. Thus, the Court refused to read the term parent to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child’s parents and who wish to continue visitation with the child.
In support of the Court’s decision in the 1991 precedent, the Court cited a landmark cases which set forth bedrock principles of family law. In the said case, the Court held that the State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. Where extraordinary circumstances are present, the Court determines custody based on the child’s best interest. Concomitantly, the Court held that visitation rights may not be granted on the authority of the extraordinary circumstances rule, to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother, and further noted that the mother possessed a fundamental right to choose those with whom her child associates, which the State may not interfere with unless it shows some compelling State purpose which furthers the child best interests.
In addition, the Court ruled that under the Domestic Relations Law, New York’s adoption statute, it permits the unmarried partner of a child’s biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, to become the child’s second parent by means of adoption. The stressed that permitting such second-parent adoptions allow children to achieve a measure of permanency with both parent figures and avoid the sort of disruptive visitation battle.
In the case at bar, although petitioner argues otherwise, the Court did not implicitly depart from the 1991 precedent and the 1998 precedent. In the 1998 precedent, the Court held that a man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. The Court premised its decision on their precedents, the affirmed findings of fact and the legislative recognition of paternity by estoppels. On the latter point, the Court highlighted that although paternity by estoppel for purposes of child support originated in case law, it was now secured by statute in New York Family Court Act.
The Court said that the 1998 precedent was limited to the context in which that case arose-the procedure for determining the paternity of an “alleged father.” Moreover, the Court see no inconsistency in applying equitable estoppel to determine filiation for purposes of support, but not to create standing when visitation and custody are sought. As already noted the Legislature has drawn the distinction for sections 418(a) and 532(a) of the Family Court Act and direct the courts to take equitable estoppel into account before ordering paternity testing, while section 70 of the Domestic Relations Law does not even mention equitable estoppel. The procedure dictated by sections 418(a) and 532(a) is intended to prevent someone who has held himself out as a child’s biological father from later evading the financial obligations of paternity by means of a scientific litmus test, thereby endangering the child’s economic security or even rendering the child a ward of the State. This may on occasion result in deeming a biological relationship to exist where the putative father is, in fact, a biological stranger to the child, as turned out to be the case. Thus, petitioner would have the Court upend this rationale by allowing someone who is a known biological stranger to a child assert a parental relationship over the objections of the child’s biological parent.
More to the point, the flexible type of rule championed by petitioner threatens to trap single biological and adoptive parents and their children in a limbo of doubt. These parents could not possibly know for sure when another adult’s level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party. Significantly, the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court. Courts must be sensible of the traditional presumption that a fit parent will act in the best interest of his or her child and protect the parent’s fundamental constitutional right to make decisions concerning the rearing of that child.
In view of the forgoing, the Court held that this fundamental right entitles biological and adoptive parents to refuse to allow a second-parent adoption, as respondent did, even if they have permitted or encouraged another adult to become a virtual parent of the child, as petitioner insists was the case here.
In addition, the Court agreed with the respondent that any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent. Hence, in conclusion, the 1991 precedent coupled with the right of second-parent adoptio furnishes the biological and adoptive parents of children-and, importantly, those children themselves-with a simple and understandable rule by which to guide their relationships and order their lives. For the reasons set out in this opinion, the Court decline petitioner’s invitation to distinguish or overrule the 1991 precedent. Whether to expand the standing to seek visitation and/or custody beyond what sections 70, 71 and 72 of the Domestic Relations Law currently encompass remains a subject for the Legislature’s consideration.
As regards the second issue, the Court insofar as deciding the question as to the parental status of the petitioner under Vermont Law, held that Vermont’s civil union statute provides that parties to a civil union shall have all the same benefits, protections and responsibilities under law as are granted to spouses in a marriage, and that they shall enjoy the same rights with respect to a child of whom either becomes the natural parent during the term of the civil union like that of a married couple.
The Court cited a case wherein it held that the Vermont Supreme Court relied upon these provisions to hold that a child born by artificial insemination to one partner of a civil union should be deemed the other partner’s child under Vermont law for purposes of determining custodial rights following the civil union’s dissolution. The court concluded that in the context of marriage, a child born by artificial insemination was deemed the child of the husband even absent a biological connection. In light of section 1204 and by parity of reasoning, the court decided that the same result pertained to the partner in the civil union with no biological connection to the child.
In the case at bar, respondent counters that in the case cited above, that the child was conceived by artificial insemination after the parties entered into their civil union, while the boy was conceived before her civil union with the petitioner. The Court find no reason why the Vermont Supreme Court would reach a different result about parentage based on this distinction. The court repeatedly emphasized how important it was that the child was born during the civil union. Many factors are present here that support a conclusion that (the partner with no biological connection to the child) is a parent, including, first and foremost, that (she and the child’s biological mother) were in a valid legal union at the time of the child’s birth. Because so many factors are present in this case that allows the Court to hold that the non-biologically-related partner is the child’s parent, the Court need not address which factors may be dispositive on the issue. The Court do note that, in accordance with common law, the couple’s legal union at the time of the child’s birth is extremely persuasive evidence of joint parentage. Indeed, entering into the civil union at a time when both partners know that one of them is pregnant by artificial insemination might well be viewed as presenting an even stronger to support the non-biological partner’s parentage. There is certainly no potential for misunderstanding, ignorance or deceit under such circumstance. Respondent did not challenge the civil union’s validity. She protests, though, that it was of utterly no consequence to her, and that while she gave into petitioner’s demands she did not enter into the civil union blindly. Rather, respondent who is a practicing attorney-professes to have conducted research and to have found that entering into a Vermont civil union was of no legal significance in the State of New York, which is still the case today. Whatever her motivation or expectation, respondent chose to travel to Vermont to enter into a civil union with the petitioner. In view of the forgoing, the Court held that petitioner is the boy’s parent under Vermont Law as a result of that choice
The question then becomes whether New York courts should accord comity to Vermont and recognize respondent as the boy’s parent under New York law as well.
The Court held, that the doctrine of comity does not of its own force compel a particular course of action. Rather, it is an expression of one State’s entirely voluntary decision to defer to the policy of another. Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of cooperative federalism, or as merely an expression of hope for reciprocal advantage in some future case in which the interests of the forum are more critical
NewYork’s determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy and our policy prevails in case of conflict. The court locates the public policy of the state in the law as expressed in statute and judicial decision” and also considers the prevailing attitudes of the community. Even in the case of a conflict, however, New York’s public policy may yield in the face of a strong assertion of interest by the other jurisdiction.
The Court said that New York my accord comity to recognize parentage created by an adoption in a foreign nation. For instance, comity may be extended to a Cambodian adoption certificate so that an individual who is a child’s father under Cambodian law is also his father under new York. The Court finds no reason to withhold equivalent recognition where someone is a parent under a sister state’s law. Respondent, as was her right as the boy’s biological parent, did not agree to let petitioner adopt the boy. But the availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our State’s public policy. Nor would comity undermine the certainty that the 1991 precedent ruling promises biological and adoptive parents and their children whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent’s legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage.
In sum, the decision of the Court does not lead to protracted litigation over standing and is consistent with New York’s public policy by affording predictability to parents and children alike. Although she sought more expansive rulings, petitioner also made the narrower case on this appeal that comity should be accorded to the civil union at least to recognize her as a parent to the boy, and that acknowledging the significance to the boy of his parents’ Vermont civil union does not require resolving whether New York grants comity to the civil union for other purposes.
Hence, the Court agreed for the reasons given, and thus in this case decide only that New York will recognize parentage created by a civil union in Vermont. The Court’s determination that petitioner is the boy’s parent allows her to seek visitation and custody at a best-interest hearing. There, she will have to establish facts demonstrating a relationship with M.R. that warrants an award in her favor.
Accordingly, the Court ordered that the decision of the Appellate Division should be reversed, with costs, and the case be remitted to Supreme Court for a best-interest hearing.
An issue concerning child custody and visitation entails best-interest hearing in favor of the subject child. There is a need for the assistance of a New York Child Custody Attorney. Our New York Family Attorneys and New York Divorce Attorneys here in Stephen Bilkis and Associates can represent your day in court.