Lesbian Co-Parent Claim Precluded By 22-Year-Old Case

The evil that courts do lives on…

On October 4, the New York Law Journal published a ruling out of the Rockland County Family Court that rejected all attempts by a lesbian co-parent to challenge her former partner’s refusal to allow her any contact with the children they had been raising together.

The principal barrier to the co-parent’s claim is a 1991 ruling by the New York Court of Appeals, the state’s highest bench, in Alison D. v. Virginia M., finding, in similar circumstances, that despite her parental relationship with a child since its birth the co-parent was a “legal stranger” who had no legal standing under state law to seek to have her parental rights recognized or to obtain custody or visitation. New York law requires “special circumstances” for a legally unrelated third party to seek custody of a child, and claims of this sort from longtime co-parents do not qualify under existing precedent.

A.F., the complainant, and K.H. were registered domestic partners and were living together when they decided to have children. Using anonymous donor insemination, K.H. conceived two children whom the couple raised together until they separated in July 2011 (the very month when same-sex marriage rights became available in New York).

New York State continues to treat non-birth mother as “legal stranger” in custody case

For the next seven months, the women continued living on separate floors in the same house, which allowed A.F. easy contact with the children. In early 2012, however, K.H. took the children to New Jersey where they lived in her mother’s house before relocating to another address in New York State. During this period, A.F. enjoyed visitation two days a week and on alternate weekends.

A.F. contributed to the children’s financial support, but in May 2012 K.H. filed a petition in Rockland Family Court seeking to make that obligation formal. As part of that claim, K.H. argued in detail about how A.F. was a parent of the children who should be held legally responsible for support. Three months later, however, K.H. withdrew that petition.

A.F. continued to enjoy visitation and provide financial support until April of this year, when there was an “altercation during a visitation exchange.” At that point, K.H. refused her ex-partner further visitation and A.F. filed her petition in family court.

Rockland County Family Court Referee Dean Richardson-Mendelson found that the Alison D. decision, never overruled or modified by the Court of Appeals, had to control the disposition of A.F.’s legal claim. In other words, someone who would be declared a “legal stranger” to the child in 1991 remains a legal stranger today because the Legislature never heeded the court’s suggestion that it address the issue of non-traditional families. Second-parent adoption is legal in New York, as is step-parent adoption, but these parties never took those steps and their break-up came just as the state was enacting marriage equality.

Failing on her claims based on New York’s custody statute, A.F. also advanced an argument based on the doctrine of equitable estoppel. According to that legal approach, K.H. could not deny A.F.’s parental status because she had, in fact, treated A.F. as the children’s parent for years, fostering the relationship of A.F. with the children and allowing visitation to continue for almost two years after the women’s relationship ended. The Court of Appeals had directly rejected such an argument in the Alison D. case, so A.F. was precluded from making this claim here.

Finally, A.F. argued judicial estoppel, a doctrine that would prevent K.H. from taking diametrically opposite positions in different legal proceedings. A.F. pointed out that her ex-partner had filed a support petition in which she alleged A.F. was a parent of the children, but now was arguing she was not. The court rejected this argument as well, pointing out that K.H. had withdrawn her support petition long before A.F. filed the custody and visitation petition. The doctrine, Richardson-Mendelson noted, usually applies only when a party wins a legal judgment using one argument and is then blocked from using the opposite argument in a later proceeding.

In the end, for A.F., it made no difference that New York is now a marriage equality jurisdiction. Marriage equality provides equal marital rights, but it does not change the legal position of unmarried partners toward each other or their children. Unless the New York Legislature changes the rules, the legal invisibility of unmarried same-sex couples raising children will continue.