Who Is a Parent?

In July, two New York courts decided cases concerning the rights and responsibilities of non-biological/non-adoptive “parents” toward the children of romantic partners they had never married. In one, the non-biological parent may ultimately be ordered to pay child support, while in the other, the non-parent's request to be declared a father was dismissed, foreclosing his opportunity to seek court-ordered visitation. Why was one declared eligible to be treated as a parent, while the other was not? And do these cases help us to find a definitive answer to the question of whether an unmarried partner of a legal parent may be treated as a parent in the eyes of the law?

Same-Sex Partner May Be Deemed a 'Parent'

In Matter of H.M. v. E.T., — N.Y.S.2d —-, 2010 WL 3023919 (2d Dept, 8/3/10) (Fisher, J.P., Covello, Angiolillo, Balkin and Chambers, J.J.), a woman sought to compel her former same-sex partner to pay child support for the child that was conceived during their relationship. The petitioner averred that she had decided to have the child in reliance on the respondent's promise that they would raise and support the child together. However, six months after the baby was born, their relationship ended and the respondent disavowed any responsibility for the child. The petitioner asked the court to order the respondent to pay child support. The case went from Family Court to the Second Department to the Court of Appeals and back, with various detours in between. In this most recent action, the Court of Appeals had said that the biological mother might have a valid case, and it sent the matter to the Second Department for consideration of the question of whether the petition had sufficiently stated a cause of action for child support pursuant to Family Court Act articles 4 and 5-B (see Matter of H.M. v. E.T., 14 NY3d 521, 528).

The petitioner was seeking an order of support on the basis that she and the respondent had formed an implied contract and that the respondent should be equitably estopped from disclaiming her obligations under that contract. Family Court found that it had jurisdiction and ordered that support be paid. The Second Department vacated the support orders, saying that Family Court did not have jurisdiction. The Court of Appeals disagreed with the Second Department, holding that claims like the one at hand lay 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.” It then sent the parties back to the Second Department, which rendered this most recent decision in the case.

The Second Department determined the petitioner had 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 had allowed that argument to prevail in previous cases, including one in which it held that a husband could be required, under the “dual foundation” of equitable estoppel and implied contract, to support a child whom he had neither fathered nor adopted. Wener v. Wener, 35 AD2d 50 (husband prevented from revoking consent to adoption of children already taken into his wife's care). Based on this, the court concluded,”By parity of reasoning, 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 [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.”

The case was returned to Family Court for determination of whether the respondent should be equitably estopped from denying her responsibility to support the petitioner's child.

Non-Biological, Non-Adoptive Partner May Not Be Deemed a 'Parent'

In Matter of P. v. B., NYLJ 1202464236647, (Sup. Ct., Orange Cty. 7/28/10) (Kiedaisch, J.), a man sought an order of paternity, which would give him the right to seek visitation with his ex-partner's two adopted children.

Although the petitioner had been in a relationship with the mother for 11 years before their break-up in 2009, he never adopted the children that she adopted during their relationship. Still, he alleged that he and his family were present at both children's births (in 2002 and 2005) and that he was there at their adoptions. He took part in all their milestone events, including the boy's bris and both children's birthdays. He attended their school, sporting and extra-curricular activities, and took them to synagogue. He said that he regularly bathed, clothed and otherwise took care of the children, including serving as their primary caregiver while his girlfriend worked at her veterinary practice. The petitioner further alleged that the children considered him their father, referred to him as “dad” or “daddy,” and that they had always considered his extended family to be their relatives. Finally, he claimed that all throughout the children's lives, he and the children's mother had held him out as their father. As evidence of this, he offered a letter from one of the children's former school principals, in which the principal referred to the petitioner as the child's father and noted his involvement in school activities. He alleged that under the equitable estoppel doctrine, he was a person standing “in a parental relation to the children.”

As to why he had never adopted the children, the petitioner stated in his affidavit to the court: “Not understanding the ramifications, I participated in the adoption process of [the elder child], but was not listed as an adoptive parent on the petition for adoption, believing that my participation in the process was sufficient to make my fatherhood legal. The Respondent told me that the adoption would be simpler if she adopted [the elder child] in her name only, and that thereafter, I could easily modify the papers to include me. I naively believed the Respondent's representation and did not demand to be included in the adoption process. I believed that my paternal rights would be preserved by my participation in the adoption process and the children's lives thereafter.”

The adoptive mother moved to dismiss the petitioner virtual father's application for lack of standing, on the basis that he was neither the biological nor adoptive father of the children. She cited to the case of Debra H. v. Janice R., 14 NY3d 576, in which the Court of Appeals held that the doctrine of equitable estoppel cannot be invoked by a person seeking custody or visitation against the wishes of a fit legal parent when the petitioner is neither the biological nor adoptive parent. The fit legal parent's constitutional right to raise the child as he or she sees fit cannot normally be abridged. Debra H. made no exception even for situations like the one in Matter of P. v. B., in which a legal parent has allowed, or even encouraged, the formation of a parent/child relationship between the child and the virtual parent.

The court in Matter of P. v. B. sided with the mother, noting that if it declared the petitioner the children's father, he would then be entitled to seek custody and visitation. This would amount to an “end run” around the Court of Appeals' holding in Debra H. Taking a quote from a concurring opinion in Debra H., the court stated: “In Debra H., the Court of Appeals enunciated a 'bright-line rule' to prevent single legal parents from becoming trapped in custody/visitation claims and litigation in a domestic breakup by a significant other whom the legal parent allowed to become or, in fact, encouraged to become a 'virtual parent' to the child.” The court continued, “If petitioner is granted such relief, and the paternity statute is applied in such manner where being a biological parent is no longer the central underpinning to being adjudicated the parent, that would raise the issue of equal protection and fundamental fairness to female virtual parents who have the same claims that in reliance upon the legal parent they became a virtual parent to the child [as in Debra H.] ' . In any event, to permit petitioner to apply the paternity statute in the manner he seeks constitutes a substantial expansion of the paternity statute which this court is not able to conclude the Court of Appeals has yet approved.” The court therefore dismissed the paternity petition, finding the virtual father lacked standing.

Conclusion

In next month's newsletter we'll explore further what New York courts look for when deciding whether a virtual parent can be treated as a parent in the eyes of the law, and discuss some of the contradictions.

Janice G. Inman is Editor-in-Chief of this newsletter.

In July, two New York courts decided cases concerning the rights and responsibilities of non-biological/non-adoptive “parents” toward the children of romantic partners they had never married. In one, the non-biological parent may ultimately be ordered to pay child support, while in the other, the non-parent's request to be declared a father was dismissed, foreclosing his opportunity to seek court-ordered visitation. Why was one declared eligible to be treated as a parent, while the other was not? And do these cases help us to find a definitive answer to the question of whether an unmarried partner of a legal parent may be treated as a parent in the eyes of the law?

Same-Sex Partner May Be Deemed a 'Parent'

In Matter of H.M. v. E.T., — N.Y.S.2d —-, 2010 WL 3023919 (2d Dept, 8/3/10) (Fisher, J.P., Covello, Angiolillo, Balkin and Chambers, J.J.), a woman sought to compel her former same-sex partner to pay child support for the child that was conceived during their relationship. The petitioner averred that she had decided to have the child in reliance on the respondent's promise that they would raise and support the child together. However, six months after the baby was born, their relationship ended and the respondent disavowed any responsibility for the child. The petitioner asked the court to order the respondent to pay child support. The case went from Family Court to the Second Department to the Court of Appeals and back, with various detours in between. In this most recent action, the Court of Appeals had said that the biological mother might have a valid case, and it sent the matter to the Second Department for consideration of the question of whether the petition had sufficiently stated a cause of action for child support pursuant to Family Court Act articles 4 and 5-B ( see Matter of H.M. v. E.T. , 14 NY3d 521, 528).

The petitioner was seeking an order of support on the basis that she and the respondent had formed an implied contract and that the respondent should be equitably estopped from disclaiming her obligations under that contract. Family Court found that it had jurisdiction and ordered that support be paid. The Second Department vacated the support orders, saying that Family Court did not have jurisdiction. The Court of Appeals disagreed with the Second Department, holding that claims like the one at hand lay 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.” It then sent the parties back to the Second Department, which rendered this most recent decision in the case.

The Second Department determined the petitioner had 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 had allowed that argument to prevail in previous cases, including one in which it held that a husband could be required, under the “dual foundation” of equitable estoppel and implied contract, to support a child whom he had neither fathered nor adopted. Wener v. Wener , 35 AD2d 50 (husband prevented from revoking consent to adoption of children already taken into his wife's care). Based on this, the court concluded,”By parity of reasoning, 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 [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.”

The case was returned to Family Court for determination of whether the respondent should be equitably estopped from denying her responsibility to support the petitioner's child.

Non-Biological, Non-Adoptive Partner May Not Be Deemed a 'Parent'

In Matter of P. v. B., NYLJ 1202464236647, (Sup. Ct., Orange Cty. 7/28/10) (Kiedaisch, J.), a man sought an order of paternity, which would give him the right to seek visitation with his ex-partner's two adopted children.

Although the petitioner had been in a relationship with the mother for 11 years before their break-up in 2009, he never adopted the children that she adopted during their relationship. Still, he alleged that he and his family were present at both children's births (in 2002 and 2005) and that he was there at their adoptions. He took part in all their milestone events, including the boy's bris and both children's birthdays. He attended their school, sporting and extra-curricular activities, and took them to synagogue. He said that he regularly bathed, clothed and otherwise took care of the children, including serving as their primary caregiver while his girlfriend worked at her veterinary practice. The petitioner further alleged that the children considered him their father, referred to him as “dad” or “daddy,” and that they had always considered his extended family to be their relatives. Finally, he claimed that all throughout the children's lives, he and the children's mother had held him out as their father. As evidence of this, he offered a letter from one of the children's former school principals, in which the principal referred to the petitioner as the child's father and noted his involvement in school activities. He alleged that under the equitable estoppel doctrine, he was a person standing “in a parental relation to the children.”

As to why he had never adopted the children, the petitioner stated in his affidavit to the court: “Not understanding the ramifications, I participated in the adoption process of [the elder child], but was not listed as an adoptive parent on the petition for adoption, believing that my participation in the process was sufficient to make my fatherhood legal. The Respondent told me that the adoption would be simpler if she adopted [the elder child] in her name only, and that thereafter, I could easily modify the papers to include me. I naively believed the Respondent's representation and did not demand to be included in the adoption process. I believed that my paternal rights would be preserved by my participation in the adoption process and the children's lives thereafter.”

The adoptive mother moved to dismiss the petitioner virtual father's application for lack of standing, on the basis that he was neither the biological nor adoptive father of the children. She cited to the case of Debra H. v. Janice R. , 14 NY3d 576, in which the Court of Appeals held that the doctrine of equitable estoppel cannot be invoked by a person seeking custody or visitation against the wishes of a fit legal parent when the petitioner is neither the biological nor adoptive parent. The fit legal parent's constitutional right to raise the child as he or she sees fit cannot normally be abridged. Debra H. made no exception even for situations like the one in Matter of P. v. B., in which a legal parent has allowed, or even encouraged, the formation of a parent/child relationship between the child and the virtual parent.

The court in Matter of P. v. B. sided with the mother, noting that if it declared the petitioner the children's father, he would then be entitled to seek custody and visitation. This would amount to an “end run” around the Court of Appeals' holding in Debra H. Taking a quote from a concurring opinion in Debra H., the court stated: “In Debra H., the Court of Appeals enunciated a 'bright-line rule' to prevent single legal parents from becoming trapped in custody/visitation claims and litigation in a domestic breakup by a significant other whom the legal parent allowed to become or, in fact, encouraged to become a 'virtual parent' to the child.” The court continued, “If petitioner is granted such relief, and the paternity statute is applied in such manner where being a biological parent is no longer the central underpinning to being adjudicated the parent, that would raise the issue of equal protection and fundamental fairness to female virtual parents who have the same claims that in reliance upon the legal parent they became a virtual parent to the child [as in Debra H.] ' . In any event, to permit petitioner to apply the paternity statute in the manner he seeks constitutes a substantial expansion of the paternity statute which this court is not able to conclude the Court of Appeals has yet approved.” The court therefore dismissed the paternity petition, finding the virtual father lacked standing.

Conclusion

In next month's newsletter we'll explore further what New York courts look for when deciding whether a virtual parent can be treated as a parent in the eyes of the law, and discuss some of the contradictions.

Janice G. Inman is Editor-in-Chief of this newsletter.