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New York State Tosses Noxious Custody Precedent

The late Court of Appeals Chief Judge Judith Kaye had her 1991 dissent in a precedent-setting same-sex couple custody fight vindicated this week by the state’s highest court.  | SKADDEN.COM

The late Court of Appeals Chief Judge Judith Kaye had her 1991 dissent in a precedent-setting same-sex couple custody fight vindicated this week by the state’s highest court. | SKADDEN.COM

BY ARTHUR S. LEONARD | New York State’s highest bench, the 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 seek custody of a child.

The August 30 opinion for the court by Judge Sheila Abdus-Salaam 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.”

The court was ruling on two cases that originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke S.B. v. Elizabeth A.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.

Court of Appeals reverses 1991 ruling that barred standing for parents without biological, adoptive ties

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 a 1991 Court of Appeals ruling, Alison D. v. Virginia M., 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 New York’s Domestic Relations Law provision authorizing custody and visitation lawsuits, the Court of Appeals in Alison D. limited its meaning 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 other cases the Court of Appeals decided. The court specifically ruled that the facts in Alison D. –– similar to those in the Brooke S.B. case –– did not constitute such “extraordinary circumstances.”

In the other case decided by this new ruling, 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 they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity. Their daughter was born in November 2008, and they lived together as a family for the next three years until the women’s relationship ended. Estrellita moved out in September 2012, but continued to have contact with the child with Jennifer’s permission.

The following month, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita, who 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. But in responding to Estrellita’s petition for visitation, Jennifer argued that the Allison D. precedent should 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 –– such inconsistent legal arguments barred by a doctrine known as “judicial estoppel.” After a hearing, the Family Court concluded that ordering visitation was in the child’s best interest. The Appellate Division affirmed this ruling, and Jennifer appealed to the Court of Appeals.

Judge Abdus-Salaam’s decision for the state’s high court refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case. Kaye, a quarter century ago, emphasized that the court’s narrow conception of parental standing would adversely affect children raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to steer policy and decisions in the best interest of the child. In adopting the posture it did, the court cut short legal proceedings before the child’s best interest could even be considered.

Unfortunately, Kaye passed away before learning that her dissent would be vindicated in this new ruling. However, her 2006 dissent from the Court of Appeals’ refusal 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 US Supreme Court last year in Obergefell v. Hodges.

Abdus-Salaam pointed out that 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) 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.”

In its new ruling, the Court of Appeals –– acknowledging strong court precedent recognizing the constitutional rights of biological parents –– took a cautious approach. Although some parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of those who are neither biological nor adoptive parents, the court focused on the facts of these two cases, where the plaintiffs alleged 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 with a child gets a new partner who assumes a parental role, 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 such an agreement existed with “clear and convincing evidence” –– an unmistakable nod to the strong constitutional rights courts accord to biological parents in controlling their children’s upbringing. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show it was “more likely than not” that such an agreement existed.

Of the six justices who participated in this case, four –– all of them, like Abdus-Salaam, appointees of Democratic Governor Andrew Cuomo –– signed her opinion. The other member of the court, Judge Eugene Pigott, appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing about overruling Alison D.

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 her equal parental rights under Vermont law, which New York State would respect.

Pigott argued that since New York now has both marriage equality and co-parent adoption, 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. Still, he agreed with the disposition of the two cases, finding that judicial estoppel barred Jennifer’s effort to deny Estrellita’s status as a parent which she argued for in her child support claim. In the case of Brooke and Elizabeth, he would apply the “extraordinary circumstances” doctrine, given the changed legal landscape between the couple agreeing to have a child in 2006 and Brooke losing visitation in 2013.

Pigott apparently sees this case as presenting a transitional problem now resolved by marriage equality being the law of the land.

Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, while Sherry Bjork represents Elizabeth and Eric Wrubel of Warshaw Burstein serves as court-appointed counsel for the child.

In the other case, Andrew Estes of Kramer Levin 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.

Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. 25 years ago, with its then-legal director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

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