Published on:

Non-biological Father Seeks Custody


Respondent is the biological mother of the subject child, a six-year-old boy conceived through artificial insemination and born in December 2003. Respondent and petitioner met in 2002 and entered into a civil union in the State of Vermont in November 2003, the month before the child’s birth. Respondent repeatedly refused petitioner’s requests to become the child’s second parent by means of adoption. A New York Family Lawyer said after the relationship between the petitioner and respondent soured and they separated, respondent allowed petitioner to have supervised visits with the child each week on Sunday, Wednesday and Friday for specified periods of time, as well as daily contact by telephone. In the spring of 2008, however, respondent began scaling back the visits. By early May 2008, she had cut off all communication between petitioner and the child.

Petitioner brought the proceeding against the respondent in Supreme Court by order to show cause. 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.

At the hearing, the petitioner acknowledged the Supreme Court’s landmark decision in Matter of Alison D., which held that only a child’s biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent, but contended that another landmark case, which endorsed a nonbiological or nonadoptive parent’s right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D.

In a decision and order, Supreme Court ruled in petitioner’s favor. The judge reasoned that “it was inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support obligations, but preclude a nonbiological 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. Respondent filed an appeal.The Appellate Division unanimously reversed on the law, vacated Supreme Court’s order, denied the petition, and dismissed the proceeding.

The Supreme Court reaffirmed its ruling in Alison D. but reversed the Appellate Division’s order for reasons of comity in light of petitioner’s status as the child’s parent under Vermont law.

The Court reiterated that Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups otherwise fraught with the risk of “disruptive … battle[s]” over parentage as a prelude to further potential combat over custody and visitation. A New York Custody Lawyer said while petitioner complain that Alison D. is formulaic, or too rigid, or out of step with the times, the Court remain convinced that the predictability of parental identity fostered by Alison D. benefits children and the adults in their lives.

The Court stated that it must be sensible of the traditional presumption that a fit parent will act in the best interest of his or her child and protect the parent’s fundamental constitutional right to make decisions concerning the rearing of that child. A Queens Family Lawyer said in the Court’s view, this fundamental right entitles biological and adoptive parents to refuse to allow a second-parent adoption, as respondent did, even if they have permitted or encouraged another adult to become a virtual parent of the child, as petitioner insists was the case here.

However, the Court opined that 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” (Vt. Stat. Ann., tit. 15, § 1204[a] ); 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. A Nassau County Family Lawyer said the court applied the doctrine of comity which 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 cooperative 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.

The Court decided only that NewYork will recognize parentage as created by a civil union in Vermont. It determined that petitioner is the child’s parent allowing her to seek visitation and child custody at a best-interest hearing.

Our New York Child Custody Lawyers at Stephen Bilkis & Associates can stand by you to argue your case. They have offices strategically located throughout New York Metropolitan area.

Contact Information