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Visitation Sought by Non-Biological Father


The Facts:

Respondent is the biological mother (herein the respondent-mother) of six-year old boy (the subject child or the child) conceived through artificial insemination and born in December 2003. A New York Family Lawyer said the respondent-mother and petitioner met in 2002 and entered into a civil union in the State of Vermont in November 2003, the month before the subject child’s birth. The respondent-mother repeatedly rebuffed petitioner’s requests to become the child’s second parent by means of adoption.

Sometime in the spring of 2006, the relationship between the respondent-mother and petitioner soured and they separated. Thereafter, respondent-mother allowed petitioner to have supervised visits with the child each week on a Sunday, Wednesday and Friday for specified periods of time, as well as daily contact by telephone. However, sometime in the spring of 2008, respondent-mother began scaling back the visits. By early May of 2008, she had cut off all communication between petitioner and the child.

Sometime in the mid of May 2008, petitioner brought the instant proceeding against the respondent-mother in Supreme Court by order to show cause. A Nassau Criminal Lawyer said she sought joint legal and physical custody of the child, restoration of access and decision making authority with respect to his upbringing, and appointment of an attorney for the child.

On 21 May 2008, the judge signed the order to show cause, which set a briefing schedule, and the parties, at his instance, entered into a “so-ordered” stipulation that reinstated the three-day-a-week visitation schedule previously followed. The stipulation required the child’s nanny or a mutually agreed-upon third party to accompany the child when he visited the petitioner. The Supreme Court found that few facts were undisputed which differed substantially with respect to the nature and extent of petitioner’s relationship with respondent-mother and, more significantly, with the child.

On 9 October 2008, Supreme Court ruled in petitioner’s favor; that it was inconsistent to estop a non-biological father from disclaiming paternity in order to avoid support obligations but preclude a non-biological parent from invoking equitable estoppel against the biological parent in order to maintain an established relationship with the child since, in either event, the court’s primary concern should be furthering the best interests of the child; that the facts alleged by petitioner, if true, established a prima facie basis for invoking the doctrine of equitable estoppel; that the parties’ civil union is significant, though not necessarily a determinative, factor in petitioner’s estoppel argument because, under Vermont law, parties to a civil union are given the same benefits, protections and responsibilities as are granted to those in a marriage, which includes the assumption that the birth of a child during a couple’s legal union is extremely persuasive evidence of joint parentage.

The respondent-mother appeals the said decision. A Nassau County Child Support Lawyer said she obtained a stay of the equitable-estoppel hearing ordered by Supreme Court, pending disposition of the appeal.

On 9 April 2009, the Appellate Division unanimously reversed on the law, vacated Supreme Court’s order, denied the petition, and dismissed the proceeding. The court acknowledged that while the record indicated that petitioner served as a loving and caring parental figure during the first 2½ years of the child’s life, she never legally adopted him and a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law.

Subsequently, petitioner and the child’s counsel asked the Appellate Division for a stay of enforcement so as to allow visitation to continue until further appellate proceedings were completed, and for leave to appeal. Pending resolution of those motions, the Appellate Division granted petitioner’s emergency application for an interim stay and allowed Sunday visitations. After the Appellate Division denied the motions on 25 June 2009, petitioner and the attorney for the child separately asked for leave to appeal and sought another stay.

On 13 July 2009, the Court signed a “so-ordered” stipulation continuing one-day-a-week visitation. And on 1 September 2009, the court granted petitioner and the child’s attorney for the child permission to appeal; approved the request for a further stay to the extent of reinstating and permitting enforcement of so much of Supreme Court’s order as allowed petitioner to have Sunday visitation with the child.

The Ruling:

Where a minor child is residing within the state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will promote its welfare and happiness, and make award accordingly.

Under the rules, before granting custody to a nonparent over the parent’s objection, a court must make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Detriment to the child is defined to include the harm of removal from a stable placement with a person who has assumed, on a day-to-day basis, the role of the child’s parent, fulfilling both the child’s physical needs and psychological needs for care and affection, and who has assumed that role for a substantial period of time. Notably, a finding of detriment does not require any finding of unfitness of the parents. When making custody determinations, the court must give primary consideration to the best interests of the child and assure minor children of frequent and continuing contact with both parents, when appropriate. In addition, while the court shall give due regard to the primacy of the parent-child relationship, it may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.

Different policies and approaches have been implemented legislatively throughout the nation. Here, petitioner would have us preempt our Legislature by sidestepping section 70 of the Domestic Relations Law as presently drafted and interpreted in the landmark case of Alison to create an additional category of parent, a functional or de facto parent, through the exercise of our common law and equitable powers. But the Legislature is the branch of government tasked with assessing whether section 70 still fulfills the needs of New Yorkers. The Legislature may conduct hearings and solicit comments from interested parties, evaluate the voluminous social science research in this area cited by petitioner and the amici, weigh the consequences of various proposals, and make the tradeoffs needed to fashion the rules that best serve the population of our State.

Thus, the court declines petitioner’s invitation to distinguish or overrule the case of Alison. Whether to expand the standing to seek visitation and/or custody beyond what sections 70, 71 and 72 of the Domestic Relations Law currently encompass remains a subject for the Legislature’s consideration.

Moreover, the civil union entered into by the parties presents two issues: whether petitioner is the child’s parent under Vermont law and, in the event that she is, whether, as a matter of comity, she is his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing.

Vermont’s civil union statute provides that parties to a civil union shall have all the same benefits, protections and responsibilities under law as are granted to spouses in a marriage; and that they shall enjoy the same rights with respect to a child of whom either becomes the natural parent during the term of the civil union, as those of a married couple.

On another note, the doctrine of comity does not of its own force compel a particular course of action. Rather, it is an expression of one State’s entirely voluntary decision to defer to the policy of another. Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantage in some future case in which the interests of the forum are more critical.

New York’s determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy; and our policy prevails in case of conflict. The court locates the public policy of the state in the law as expressed in statute and judicial decision and also considers the prevailing attitudes of the community. Even in the case of a conflict, however, New York’s public policy may yield in the face of a strong assertion of interest by the other jurisdiction.

Here, New York will accord comity to recognize parentage created by an adoption in a foreign nation. The court sees no reason to withhold equivalent recognition where someone is a parent under a sister state’s law. The respondent-mother, as was her right as the child’s biological parent, did not agree to let petitioner adopt the child. However, the availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with the State’s public policy; neither would comity undermine the certainty that the case of Alison promises biological and adoptive parents and their children: whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent’s legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage. In sum, the court’s decision does not lead to protracted litigation over standing and is consistent with New York’s public policy by affording predictability to parents and children alike.

Although petitioner sought more expansive rulings, she also made the narrower case that comity should be accorded to the civil union at least to recognize her as a parent to the child and that acknowledging the significance to the child of his parents’ Vermont civil union does not require resolving whether New York extends comity to the civil union for other purposes. Thus, the court holds that New York will recognize parentage created by a civil union in Vermont. The determination that petitioner is the child’s parent allows her to seek visitation and custody at a best-interest hearing. There, she will have to establish facts demonstrating a relationship with the child that warrants an award in her favor.

In sum, the order of the Appellate Division is reversed, with costs, and the case is remitted to the Supreme Court for a best-interest hearing.

If you are involved in matters similar to the above, have a child support issue, or need an order for protection and you wish to resolve things legally, contact an NY Family Attorney at Stephen Bilkis & Associates immediately.

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