N.Y. Appellate Division Revives Child Support Order Against Lesbian Co-Parent
A five-member panel of the New York Appellate Division, 2nd Department, unanimously ruled on August 3 that a woman is obligated to make child support payments to her former same-sex partner. Reconsidering the case after the state’s highest court, the Court of Appeals, had reversed the appellate division’s previous ruling that the Family Court did not have jurisdiction over the child support claim because New York State did not recognize the non-biological mother as a parent of the child, the Appellate Division panel now endorsed the use of the doctrine of equitable estoppel to resolve the case. In the Matter of H.M. v. E.T., 2010 N.Y.Slip Op. 06313, 2010 Westlaw 3023919 (Aug. 3, 2010).
H.M. and E.T. were living together as partners when they decided to have a child through donor insemination. H.M. became pregnant and bore the child. Several months after the child was born, the relationship dissolved, and H.M. moved with the child to her home country of Canada. Years later, needing financial help in raising the child, H.M. filed an action in a Canadian court seeking a declaration that E.T. was a parent of the child and obligated to provide financial support. Applying the Uniform Interstate Family Support Act, H.M.’s claim was transferred to Family Court in Rockland County, New York, and assigned to a magistrate to rule on E.T.’s motion to dismiss the petition on jurisdictional grounds.
The jurisdictional argument seemed straightforward to the magistrate, who agreed with E.T. that she is not recognized as a parent of the child, under the Court of Appeals’ 1991 precedent, Alison D. v. Virginia M., so the Family Court did not have jurisdiction of the claim. H.M. appealed this ruling to the Family Court, which reversed, found jurisdiction, and ordered support payments in reliance on an estoppel theory. Simply stated, the court would find that estoppel precludes E.T. from resisting the support claim, because when the women were living as a couple she had represented to H.M. that she would be jointly responsible for the child’s welfare, and H.M. became pregnant and bore the child on reliance on that representation.
E.T. appealed the support order and won a reversal in the Appellate Division, which ruled that Family Court did not have jurisdiction, affirming the magistrate’s original ruling dismissing the case.
This time H.M. appealed to the state’s highest court, which reversed on May 4, 2010, in H.M. v. E.T., 2010 WL 1752180. According to the majority in the Court of Appeals, the issue of jurisdiction turns on the allegations of the complaint. In her complaint, H.M. alleged that E.T. was a parent of the child. That is enough to confer jurisdiction and overcome the motion to dismiss, so the case should go back to the Family Court to give H.M. an opportunity to argue her entitlement to support payments.
A dissent in the Court of Appeals pointed out that on the same day, the court had ruled in another same-sex couple case, Debra H. v. Janice R., 2010 WL 1752168, refusing to overrule Alison D. v. Virginia M., so E.T. could not be considered a parent, even for purposes of the motion to dismiss. In a concurring opinion in both rulings, however, Judge Robert Smith suggested that the court should adopt a new test of parental status, recognizing such status in the typical lesbian co-parent case where the parties had jointly planned to have and raise a child together using donor insemination.
Taking the case back from the Court of Appeals, the Appellate Division disposed of it in a brief, unsigned opinion, that nonetheless sets out a theoretical basis for its ruling. "H.M.’s petition seeks an order of support predicated upon a determination, through the doctrines of equitable estoppel and implied contract, that E.T. is chargeable with the support of the subject child, and is not entitled to disclaim that obligation," wrote the court. "We evaluate this claim for relief in accordance with the Court of Appeals’ holding that such a claim lies within the Family Court’s ‘article 4 jurisdiction,’ pursuant to which the ‘Family Court also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child’s parent.’ We now conclude that H.M. has stated a viable cause of action for the invocation of equitable estoppel to determine whether her former same-sex partner should be compelled to pay child support pursuant to Family Court Act articles 4 and 5-B."
The court explained that equitable estoppel has been used in various other contexts to hold somebody who had been acting as a parent to be obligated to provide support, even though they were neither a biological nor adoptive parent of the child in question, and that the "paramount concern" in such cases has always been "the best interests of the child." Since the Appellate Division had used equitable estoppel in the past to hold a man to a support obligation even though he had no biological or adoptive connection to a child, where he had impliedly promise his female partner to provide support and the promise was relied upon, the court found it would be appropriate to do so in this case.
"By parity of reasoning," wrote the court, "we hold that where the same-sex partner of a child’s biological mother consciously chooses, together with the biological mother, to bring that child into the world through AID [artificial insemination by donor], and where the child is conceived in reliance upon the partner’s implied promise to support the child, a cause of action for child support under Family Court Act article 4 has been sufficiently alleged."
Since this was the test that had been applied by the Family Court initially when it overruled the magistrate, asserted jurisdiction, and issued its prior support orders, there was no need to remand this case for a new proceeding to test the allegations of the complaint. Rather, the court did what it should have done when the case first came to it; it reinstated the rulings by the Family Court finding jurisdiction and ordering child support payments.
Proskauer Rose LLP (Peter J.W. Sherwin, Robyn S. Crosson and Justin F. Heinrich of counsel) represented H.M. and Rosenthal & Markowitz, LLP (Adrienne J. Orbach and Lisa Solomon of counsel) represented E.T. At the Court of Appeals, the NY County Lawyers Association and the NYC Bar Association provided amicus support for H.M
Comments