Trans Dad Wins Right to Contest Custody Due to "Extraordinary Circumstances"

A Brooklyn, New York, trial judge has ruled that due to "extraordinary circumstances" a mother may not object to the standing of her transgender spouse in a custody dispute pending in Kings County Supreme Court. K.B. v. J.R., 2009 Westlaw 3337592 (Oct. 14, 2009). As a result of this ruling on a motion by the mother, J.R., to disqualify the father, K.B., from seeking custody, Justice Esther M. Morgenstern will proceed to determine whether the father’s petition for custody should be granted in the best interests of their son, K.B. Jr.

K.B., born female but identifying since his teen years as male, began living with J.R. early in 1998. J.R. knew from the beginning that K.B. had been born female but had determined his gender identity to be male. K.B. obtained a legal change of name on June 8, 1998, leaving behind his birth name of Cassandra. Although K.B. has been taking hormones to masculinize his body, he has not undergone gender reassignment surgery, although he plans to do so in the future. After K.B. obtained the name change, K.B. and J.R. filled out a marriage license application, which was granted, and they were married.

Four years after marrying, they decided they wanted to raise a child together, and J.R. became pregnant through donor insemination. K.B. signed a consent form for J.R. to be inseminated, as is required when a married woman uses assisted reproductive technology. Three attempts were required before J.R. became pregnant, and their son, named after K.B., was born on June 13, 2002. K.B. was named as father on the birth certificate. K.B. Jr. was born prematurely and had to stay in the hospital for almost two weeks after birth. Hospital records confirm that K.B., identified as the child’s father, came to the hospital on June 25 to bring the child home. J.R. took time off from work to remain home with the child for the first six months, during which K.B. was sole support for the family, but after J.R. returned to work, K.B. became the primary care-giver.

The relationship between K.B. and J.R. broke up in mid-2006 and J.R. moved out, leaving the child with K.B. J.R. later claimed that she had to leave due to domestic violence perpetrated against her by K.B., but K.B. claims J.R. moved out to take up residence with another man. As Justice Morgenstern notes, J.R. "never explained why she left the child with [K.B.] when she did not intend to return to the marital residence."

Both parties filed petitions for legal custody of K.B. Jr. in 2007. J.R. alleged in her petition that it would be in the best interest of the child to be in her custody because K.B. was actually a woman, and she claimed that K.B. had committed acts of domestic violence that made her fear for the child’s safety. J.R. alleged that their marriage was "invalid." She also filed a petition in Family Court seeking an order of protection against K.B., but the Family Court judge actually ordered that the child remain in K.B.’s custody with visitation rights for J.R. The Family Court refused to entertain her petition for an order that custody be change to her, the court concluding that Supreme Court, where the custody petitions were pending, was the place to determine the proper validity of the marriage and the issue of custody.

The Administration for Children’s Services investigated the situation at the request of the court, and found that the child considered K.B. to be his father and was bonded to him, and further found, as K.B. had alleged in his custody petition, that the parties married and then planned to have the child and raise him together as a family, with K.B. in the role of father.

The case finally came to Justice Morgenstern when J.R. filed a matrimonial proceeding in Supreme Court, the court continuing a temporary order of custody in favor of K.B. pending the outcome. Evidence then surfaced of charges that while exercising her visitation rights J.R. had given the child food that aggravated his asthma condition, neglected to give him his medication, and had him share a bed with J.R. and her boyfriend. In addition, when speaking of K.B. in front of the child, J.R. allegedly used terms such as "bitch," "fucking bitch," and "fucking idiot." The child told the attorney appointed for him that J.R. subjected him to excessive corporal punishment, including striking him on the genitals and buttocks with a belt. These allegations led to a temporary suspension of J.R’s. visitation rights.

In the course of the proceedings, the parties agreed that their marriage was void, as same-sex couples could not marry in New York at the relevant time and, despite the name change, K.B. would not be considered male as matter of law. This led to the main legal problem in the case, as far as K.B.’s custody petition was concerned, in that under New York Law an "unrelated" person does not have standing as a "parent" to seek custody of a child in preference to the child’s natural parent. This principle, articulated by the state’s highest court, the Court of Appeals, in the Alison D. v. Virginia M. case in 1991, is up for argument before the court in another case recently granted review and soon to be argued.

Meanwhil, J.R., as the birth mother, argued that K.B.’s petition should be rejected on standing grounds, relying on Alison D.

There is, however, an exception to this rule recognized by the New York courts, and most of Justice Morgenstern’s lengthy opinion is devoted to justifying the court’s decision to apply this exception, under which a doctrine called "equitable estoppel" can be used to prevent the natural parent from raising this argument due to the "extraordinary circumstances" of a particular case. The courts have been quite sparing in applying this exception, because the natural parent’s rights are grounded in the federal constitution’s Due Process Clause, but New York courts have recognized that there may be circumstances in which it is appropriate to bar the natural parent from raising the standing argument against another adult who has no recognized legal relationship to the child but who has a strong parental relationship.

"The burden of establishing the existence of extraordinary circumstances is on the Petitioner," wrote the judge. "A prolonged separation between the biological parent and the child wherein a ‘psychological parent’ has bonded to the child would satisfy the threshold of extraordinary circumstances and afford standing to a petitioner seeking custody of a child. Psychological bonding between a non-biological parent and a child has resulted in a court finding that extraordinary circumstances do exist which allowed the non-biological party to petition a court for custody of a child. Extraordinary circumstances may be found even in the absence of a finding of unfitness by the biological parent," the judge continued. "If removal from the custody of a non-parent would cause ‘significant emotional injury’ since a strong bond developed between a child and the non-biological parent the possibility of that injury would justify a finding of extraordinary circumstances."

Justice Morgenstern found that these requirements had been met. K.B. and his son have "a strong emotional and psychological bond," she pointed out, and K.B. is "the only father that the child has known," a situation created with the active cooperation of J.R. during the child’s early years. The court noted that the parties had lived as husband and wife for eight years, and had acted in every way during the child’s early years as a family, leaving the documentary trail of a family, including the marriage certificate, the consent form for donor insemination of the wife, and the birth certificate, and they had "encouraged K.B. Jr. to accurately and without qualification address and consider the Petitioner as his father for more than six years," until in the wake of this litigation J.R. suddenly challenged that status.

The court noted that there had been a real interruption of physical custody on the part of J.R., who had moved out of the marital home leaving her son in the care of K.B., and whose own actions had led to suspension of the temporary visitation order in the case, which supported the finding of extraordinary circumstances allowing K.B. to seek custody. The court emphasized that this was not based only on the psychological bond of father and son, noting that K.B. had participated in the creation of the child and acted as his father in the role of J.R.’s spouse following a marriage ceremony, all with the "active cooperation" of J.R.

"The Respondent now seeks to prevent the Petitioner from having any relationship with the subject child who has only known one person, the Petitioner, as his father for more than six years," she wrote. "It is more than likely that if the relationship is terminated it would have a devastating psychological and emotional effect on the child." While J.R. was contending that K.B. had committed a fraud by applying as a man for a license to marry K.B., the court noted that J.R. was fully complicit in that and should not now be able to rely on it in the pending custody dispute. Indeed, the court noted, J.R. was making no substantive argument about why K.B. should be denied custody, relying entirely on the legal doctrine that the right to seek custody is limited under New York law to a natural or adoptive parent, and nothing J.R. had presented would undermine the finding that K.B. qualified for the "extraordinary circumstances" exception to that rule, which the courts have recognized in several cases.

J.R. tried to discredit the various allegations about her mistreatment of the boy, pointing out that they all emanated from the child. "The subject child may be the most reliable source of information considering the current animosity between the parties," Morgenstern responded. "A fact finding will be held to determine the veracity of the allegations," signifying that this ruling was focused narrowly on the subject of standing, and is merely a prelude to the necessary fact-finding for a final determination on the merits of the best interest of the child.

"In the case at bar," wrote Morgenstern, "the fact that the Petitioner is biologically a woman is irrelevant to the question of whether there are exceptional circumstances to grant Petitioner standing to petition for custody," and she described the facts of other "extraordinary circumstances" cases showing that they did not turn on the gender of the petitioner, but rather on the quality of the relationship between the petitioner and the child and the circumstances under which that relationship had developed.

Having found "extraordinary circumstances," Morgenstern ruled that J.R. "should be equitably estopped from challenging the standing of the Petitioner to seek custody since Respondent perpetuated the fraud and derived benefits from it until she raised it in the matrimonial action. The Respondent admitted that she entered the relationship with full knowledge that the Petitioner was biologically a woman. The Respondent agreed and married the Petitioner. The Respondent received benefits as the wife of the Petitioner. The Respondent agreed and collaborated freely with the Petitioner in the decision to have a child by artificial insemination. The Petitioner signed the consent form as the husband to the Respondent which was needed to commence the procedure. The Respondent freely divided parenting responsibilities with her ‘husband’ for almost six years and fostered a close father-son relationship between the child and Petitioner."

The court found that J.R. had "abdicated her parenting authority" to K.B., fostered his relationship with the child, and could not dispute the existence of close father-son bonds. Thus, it would not be equitable to allow her now to disavow all of that and bar him from seeking custody of the boy. "The finding of extraordinary circumstances is based on the credible allegations made by the Petitioner which are supported by the record, the reports from ACS," as well as the court’s hearing on the issue, statements made by the parties and "the observation of the demeanor of the parties."

Attorney Fred A. Werthheimer represents K.B., and attorney Rebecca M .Brisch of the Children’s Law Center is serving as counsel for the child. Attorney Jamie Burke of Brooklyn Defender Services is representing J.R. If in appeal does not intervene, one expects Justice Morgenstern would move quickly to a merits determination on K.B.’s custody petition, given the undesirability of leaving the child’s status unsettled for a further prolonged period of time. The custody petition and cross-petition have been pending in court for more than two years out of the child’s seven years of life.