Biological Mom Who Won Child Support Can’t Deny Visitation

A unanimous state appeals court panel has ruled that a birth mother who successfully sued her former same-sex partner for child support cannot now argue the partner lacks standing to seek visitation rights with the child.

The December 24 ruling from the Brooklyn-based Second Department of the New York Appellate Division based its ruling on the principle of “judicial estoppel,” which holds that a party who has won a favorable ruling cannot assert a contrary legal argument in a later proceeding.

Estrellita Arriaga and Jennifer Dukoff began living together in 2003 and registered as domestic partners in New York City in 2007. After the couple decided to have a child together, Dukoff became pregnant with sperm from an anonymous donor and gave birth to their daughter in November 2008. Though the women shared parental responsibilities, Arriaga never legally adopted the child. When their relationship ended and Arriaga moved out in 2012, the child was almost four years old. Arriaga continued to visit with the child several days a week.

Co-mother prevails in winning recognition as parent that would typically be denied her

In October 2012, Dukoff filed a family court petition seeking child support from Arriaga. The petition described Arriaga as “a parent to the child” who was “chargeable with the support of the child.” Arriaga, meanwhile, filed her own lawsuit against Dukoff, seeking custody or visitation with the child. In January 2013, the Family Court ordered Arriaga to pay child support, and she then amended her petition noting the Family Court’s finding that she is a parent of the child, entitling her to seek custody or visitation.

Dukoff responded with a motion to dismiss Arriaga’s petition, arguing that under precedent established more than two decades ago by the Court of Appeals, the state’s highest bench, Arriaga was a “legal stranger” to the child and so ineligible to seek custody or visitation.

Suffolk County Family Court Judge Theresa Whelan denied Dukoff’s motion to dismiss, finding that judicial estoppel applied given Dukoff’s success at the Family Court. When it was in her financial interest for the court to consider Arriaga a mother with support responsibilities, Dukoff argued in favor of her parental status; she could not now turn around and deny that status when it was in her interest to do so in a custody or visitation case, Whelan concluded.

In an unsigned opinion, the Appellate Division panel — consisting of Justices Reinaldo E. Rivera, Sheri S. Roman, Colleen D. Duffy, and Betsy Barros — issued a unanimous decision affirming Whelan’s order awarding visitation rights to Arriaga.

The Court of Appeals precedent Dukoff asserted — in the case of Alison D. v. Virginia M. — involved a different legal concept, “equitable estoppel,” whereby a same-sex partner asserts parental rights based on an accumulation of circumstances that demonstrate that they have acted as a parent and that the birth mother has made clear through her actions that her partner was intended to be a parent. The state’s high court rejected that argument, establishing a significant bar in the intervening decades to co-parent rights in cases where no legal adoption ever took place.

Judicial estoppel, the Appellate Division panel pointed out, “differs from establishing parentage by equitable estoppel.” Arriaga was able to establish her parental rights not based on the circumstances of her raising their child jointly with Dukoff, but rather on her ex-partner’s victory in the child support proceeding.

During that proceeding, Arriaga pointed to her lack of parental rights under New York law to defend against making child support. Dukoff, in turn, tried to employ the judicial estoppel doctrine to block Arriaga from changing her position to win custody or visitation.

But judicial estoppel is a constraint only on the winner. It was Dukoff who prevailed in her argument that Arriaga is a parent, so she now has to live with that.

During the course of the proceedings, Arriaga dropped her custody request so her win means she now has visitation rights.

Jeffrey Trachtman and Andrew Estes of Kramer Levin Naftalis & Frankel LLP, a New York City firm, and Susan G. Mintz of Gervase & Mintz of Garden City represented Arriaga, and Margaret Schaefler of Huntington represented Dukoff. Robert C. Mitchell of Central Islip appeared as counsel representing the interests of the child.