New York Trial Judge Rules That Lesbian Co-Parent Can Seek Custody and Visitation Rights

New York County Supreme Court Justice Harold B. Beeler has allowed NY Court of Appeals Chief Judge Judith Kaye's dissent in the 1991 case of Alison D. v. Virginia M. To guide his steps in ruling that a woman should have a hearing to attempt to establish that she is a “de facto parent” of the child born to her former same-sex domestic partner, who was also her New York City registered domestic partner and her Vermont civil union partner.  Debra H. v. Janice R., No. 106569/080.

In what he characterized as a case of first impression, Justice Beeler found that the parties’ entry into a Vermont Civil Union at the time that one of the women was pregnant "is strong evidence of the parties' intention to create familial bonds for their and [the child's] benefit."

Beeler's October 2 decision followed in the wake of a ruling last spring by New York County Supreme Court Justice Laura Drager, in a case involving a lesbian couple married in Canada, now seeking a divorce and a ruling on parenting issues for their child.  Drager found that the court should recognize the same-sex marriage for purposes of applying New York State laws governing divorce and child custody.  Beth R. v. Donna M., 853 N.Y.S.2d 501 (Sup.Ct., N.Y. Co., 2008).

In this new case, in which the parties are identified by the court by their first names and initials and their child by its initials, the petitioner Debra H. and respondent Janice R. offer sharply different interpretations of the facts surrounding the conception and birth of M.R. in December 2003, and their respective roles during M.R.'s life up to the time that Janice, the birth mother, cut off Debra’s contact with the child in May 2008. Shortly after that cut-off, Debra filed her lawsuit, seeking joint legal and physical custody, parenting time and restoration of telephone contact with M.R., as well as appointment of an attorney to represent the child's interests in this proceeding between the parents.

The main barrier to letting the case go forward is the state high court’s decision in Alison D., a precedent theoretically binding on all New York trial courts. In last spring's decision, Justice Drager found that the Canadian same-sex marriage made the non-biological mother a parent, and thus eligible to be considered for custody and visitation rights. In this case, the parties had registered as NYC domestic partners and Vermont civil union partners, but were not married, although same-sex marriage became available in some parts of Canada in 2003.  Justice Beeler determined to employ equitable powers, if the facts upon further hearing so warrant, to determine what is in the best interest of the child. Whether such a decision would withstand appeal is an open question.

Debra’s petition to the court paints a detailed picture of a couple intending to create a family together, asserting her full participation in the decision to have a child, in assisting her partner through the pregnancy, and in parenting the child after it was born.  In her response opposing the petition, Janice argues that Debra has misrepresented the nature of the relationship and magnified her role in the child’s life.  Among other things, Janice contends that she agreed to the domestic partnership and civil union to placate her partner, but not with the intention of creating a legal family.  These contested facts would have to be considered at the hearing, but for purposes of deciding whether the court has jurisdiction over the case, the question is whether Debra’s allegations are sufficient to raise a legal claim under New York domestic relations law.

The Court of Appeals ruled in Alison D., 77 N.Y.2d 651 (1991), that a lesbian co-parent who had not adopted her partner’s child was a “legal stranger” to the child, who had no standing to seek visitation rights under the Domestic Relations Law, which limits such standing to “parents.”  In her dissent in that case, Judge Kaye argued that the term “parent,” not specifically defined in the statute, should be broadly interpreted by the court to reflect the reality alternative families in New York, in order to achieve the overall goal of the statute to make custody and visitation decisions in the best interest of the child. 

A few years after the Alison D. decision, the court approved second-parent adoptions under the state’s adoption statute, so that same-sex couples who want to be able to access the custody and visitation statute in case their relationship terminates can do so be securing a legal relationship with their children for the non-biological parent.  Debra had suggested adopting M.R., but somehow the parties never got around to it, and Debra claims that Janice, who is a lawyer, had assured her that adoption was not necessary because Janice would “would never take M.R. away from her” and Debra, trusting her partner, decided not to pursue it further.

Stating his agreement with Judge Kaye’s dissenting argument, Justice Beeler premised his decision on numerous cases where courts have used the concept of “estoppel,” by which a party is precluded from denying the reality of a situation that they have helped to create.  In family law cases, for example, estoppel has been used to require somebody who has been acting in the role of a parent to provide child support payments, and in some other states estoppel has been used to prevent a biological mother from denying that her same-sex partner had fulfilled the role of a parent to her child.

If Debra’s allegations are proven at the hearing, Beeler found, they would show that she was in fact a parent of M.R., and should be entitled to continue in a parental role if that is in the best interest of the child.  Beeler forecast a series of two hearings in the case, the first to determine whether Debra’s allegations are true, and the second to take evidence about whether it would be in the best interest of M.R. for the court to order that Debra be allowed to continue to play a parental role in the child’s life.  In the meantime, Beller continued in effect a temporary order that he had issued allowing visitation several times a week between Debra and M.R., with a third adult present at all times.

Comments

[Kristen]

do you know the laws for this situation in Michigan?

[Art Leonard]

I don't know what the current situation is in Michigan on this issue. I looked back through my own reference materials going back to 2000 and found no reported cases about it.