Family Court Judge Allows Child Support Suit Against Mom’s Former Partner

The former same-sex partner of the mother of a child born through donor insemination may have an obligation to pay child support, according to a September 11 ruling in H.M. v. E.T. by Rockland County, New York, Family Court Judge William P. Warren, reported in the New York Law Journal on October 8, page 26, column 1.

Reversing a ruling by Support Magistrate Rachelle C. Kauffman to dismiss the mother’s complaint, Judge Warren found that the facts alleged by the child’s biological mother were sufficient to support a claim using the legal theory of "equitable estoppel," by which her former partner would be precluded from arguing that she was not a parent of the child for purposes of the support obligation.

According to the complaint filed by H.M., the parties lived as a couple for more than five years, beginning in August 1989. E.T. was attending chiropractic school while H.M. was a stay-at-home mother for E.T.’s children., with the plan that once E.T. graduated, she would work as a chiropractor and support H.M. through social work school. The women also planned to have children together. "After the parties received fertility services from three fertility clinics," wrote Judge Warren, "and after eleven failed attempts to conceive a child together, in December 1993, the parties laid on the bed they shared together as a couple and the respondent inseminated vials of sperm into the petitioner, resulting in the conception of" R.M."

While pregnant, H.M. was accepted into an adult education program and achieved her high school equivalency diploma, "completing a major step towards achieving the parties’ commitments and plans," wrote Warren. The child was born at home, with E.T. cutting the umbilical cord. "For the first three months of the child’s life, the respondent nurtured and cared for the child as a parent," wrote Warren, "however, in January 1995, the respondent ended the parties’ relationship. She gave petitioner $1,500, however, as petitioner had no other income or place to live, she and the child moved in with her parents in Montreal, Canada."

In her petition to the court, H.M. claimed that E.T. had "failed to honor her commitment to support her while she acquired her social work degree, and has refused to accept financial responsibility for the child."

The opinion provides no explanation why H.M. waited until January 2007 to file her petition seeking a declaration that E.T. is a parent and obliged to provide child support payments. H.M. is seeking payments retroactive to the child’s birth, now thirteen years ago.

Judge Warren noted that under existing New York law, "a former same-sex partner who is neither an adoptive nor biological parent of the subject child has no standing to seek custody or visitation, and cannot rely upon the doctrine of equitable estoppel to establish her status as a de facto parent of a child to which she was a legal or biological stranger. However, as far as the obligation of a former same-sex partner to support a child which is neither her biological nor adoptive child, there appears to be scant authority in the State of New York."

Warren mentioned a 1985 case involving a female-to-male transsexual who had obtained a marriage license, whose wife had a child through donor insemination, and then who sought to escape support obligations when the couple broke up and had their marriage invalidated. In that case, the Monroe County Family Court held the legal father to the support obligation, writing, "However, by her course of conduct in this case which brought into the world two innocent children she should not be allowed to benefit from those acts to the detriment of these children and of the public generally."

In that earlier case, there had been a written child support agreement at some point, but Judge Warren did not consider the lack of a written agreement in this case to be crucial, finding that an implied agreement could be found based on the circumstances. He also noted other cases involving different-sex couples where courts bound non-biological parents to support obligations, including a recent ruling by the state’s highest court, Shondel J. v. Mark D., where a man who agreed to support a child under the mistaken belief that he was the biological father was nonetheless held to his support obligation.

"By statute, the Legislature has recognized the viability of the doctrine of equitable estoppel applying in paternity proceedings," Warren explained. "Those statutes direct the court to not order Genetic Marker on DNA tests if the court finds that it is not in the best interests of the child on the basis of, inter alia, equitable estoppel. Therefore, if the circumstances exist to justify the application of the doctrine of equitable estoppel, no scientific test is ordered and the issue of biology is never even reached. If the issue of biology is not a factor in a paternity proceeding where equitable estoppel is established, it would appear that the gender of the individual against whom the doctrine is applied becomes irrelevant. Consequently, a paternity proceeding could proceed against a same sex partner if circumstances are established justifying the application of equitable estoppel."

Confronting a motion by E.T. to dismiss the case, Warren pointed out that he was obliged to treat as true all of H.M.’s factual allegations for purposes of deciding whether she had alleged facts that would support the application of equitable estoppel. "In this court’s view," he wrote, "based upon the facts alleged by the petitioner, it is possible that a court could conclude that the respondent should be estopped to deny her role as a person responsible to provide support for the child," and thus it was wrong for the Magistrate to have dismissed the case. "The focus of a court’s analysis must be on the child, and the protection of his rights, interests and welfare," Warren asserted. Although he found that the law provided no "bright line test" to determine when a non-biological and non-adoptive parent should be bound to provide child support, it was necessary for the court to make such a determination to protect the child.

"To automatically relieve an individual of any duty of furnishing support for a child resulting from the artificial insemination of her same-sex partner, to which insemination the same-sex partner submitted in reliance upon certain promises, could be against the best interests of the child as well as cast a financial burden upon the biological parent which in equity and conscience should be shared," Warren concluded, ordering that a hearing be scheduled to determine the facts necessary to decide whether such an obligation should be imposed on E.T.