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In Re: A.F. Petitioner v. K.H. Respondent


No. P-3017

May 25, 2017

The parties, in this case, were domestic partners. After 2005, they decided to have children. K.H. would carry the children and become pregnant via a sperm donor. The parties separated in 2011.

There is no dispute that the parties agree to both acts as the children’s parents. They shared in all the usual parental duties, both participated in the birth of the children and both children shared to party’s last name. The children have been raised in a family setting with grandparents, and aunts and uncles nearby.

Decision and Order

Ultimately, the Petitioner’s prior custody petition was dismissed. AF had not established a case for extraordinary circumstances for a nonparent seeking custody or visitation (Bennett v. Jeffery’s 40 NY2d 543). The prevailing case law (Allison D. v Virginia M., 77 NY2d 651, 569, Debra HV Janice R., 14 NY3d 576 specifically disallow a nonbiological person who hasn’t adopted or is married from seeking custody and visitation because of lack of standing.

The appellate division affirmed the decision.

It was undisputed that following AF’s petition, there has been no contact between the parties. KH also got an order allowing her to change the children’s names. Once the court issued an opinion in Brooke, AF filed another custody petition stating that in Brooke the parent automatically had standing.

KH objected and moved for AF’s application to be dismissed based on lack of standing. The court said it is not bound by stare decisis.

The court struggled with the issue of stare decisis which was discussed in Brooke, because of its prior decision in Alison D. v Virginia M. 77 NY2d 651, 659.

The court took great care in reasoning that stare decisis should “generally” bind the court’s future decisions in cases moving forward. However, they said also said in rare cases they will over rule a prior case if there are extraordinary circumstances involved.

The court stated that it felt compelled to overrule itself and not be held to stare decisis. Give the serious nature of the case, the trial court didn’t find it proper, given the holding in Brooke, to dismiss the petition.

KH also sought a dismissal based on the principal of res judicata. This usually doesn’t apply to custody matters (Frost v. Wisneiwski 126 AD3d 1305, 6 NY2d 809, Theresa O v Arthur P., 11 Misd. 3d 736, 809 NYS2nd 439.

Custody and parenting are so important they are always subject to modification based on the needs of the child. Litigants can’t modify orders without satisfying certain requirements. Here, there has been a change in circumstances.

Under the law, the court must decide whether it can issue an order of parentage to a nonbiological parent. Whether giving parent status within D.L.R. 70 must be resolved by the court.

This case addresses a problem that is facing same-sex couples, as they were unable to get married during the time they were having children. The nonbiological parent now is without backing. The court said that serving the child’s best interests, they should have two parents, which requires paternity proceedings be made available to lesbian mothers (Matter of Sebastian 25 Misc. 3d 567, 583, 879).

The court will not allow legal maneuvering that allows AF to be the only parent, as it is unfair. Heterosexual couples have Article 5 to rely on and can undergo a paternity hearing if needed. However, there are is no law providing for maternity (TV v NYS Dept. of Health 88 AD3d 290.

It is ordered that Petitioner’s petition for parentage is granted.

This case highlights a relatively new area of law, regarding same-sex couples. While the law is evolving, it is important to seek legal guidance to ensure that your rights are protected. Custody matter are stressful. Speak to the legal team at Stephen Bilkis and Associates for guidance and free consultation. They have offices to serve you throughout the New York area, including locations in Manhattan, the Bronx, Brooklyn, Queen, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.

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