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Court Decides Visitation Rights of Nonbiological Parent


The petitioner seeks visitation with the subject child, the biological child of the respondent. The petitioner and respondent married sometime after the child’s birth. A New York Family Lawyer said the child was born on November 17, 1997 and nearly two years later the petitioner executed an acknowledgment of paternity and had his name added to the child’s birth certificate. For several years the couple held him out to be her biological father even though they knew he was not. The petitioner and respondent began having marital problems and the child’s biological father, at some point apparently came back into the respondent’s life. A Bronx Child Custody Lawyer said that, the child’s biological father seeks an order of filiation and the respondent seeks to vacate the acknowledgment of paternity, claiming her signature on it was forged. The biological father and the mother filed their respective petitions simultaneously. In addition, the respondent is pursuing a family offense proceeding against her estranged husband alleging that he verbally harassed her over the phone. A criminal case based on allegations made by the mother against her estranged husband is also pending before this court.

A New York Custody Lawyer said that, a hearing was commenced with respect to the respondent mother’s petition to vacate the acknowledgment of paternity on the grounds of fraud. During the hearing, however, and after the biological father filed his paternity petition, the parties conceded that he is the subject child’s biological father. Independent DNA testing of the biological father confirmed his paternity. This evidence obviates the need for the court to continue taking testimony with respect to the allegations of fraud because Family Court Act § 516-a (b), the statute governing acknowledgments of paternity, specifically states that the court “shall” vacate an acknowledgment if it finds the alleged father, here, the biological father, is in fact not the biological father. To ask the court to continue hearing testimony on the allegations of fraud — as the petitioner and the law guardian do in their briefs — is in contravention of the plain language of Family Court Act § 516-a (b). It is also asking this court to ignore indisputable scientific evidence and the parties’ own admissions. The Court said that acknowledgment of paternity is vacated and that the biological father herein will be issued an order of filiation.

The issue in this case is whether the petitioner, as a biological stranger, has standing to maintain his visitation petition.

The court determines he does not. New York State recognizes three categories of persons who may seek child custody or visitation with children: parents, siblings and grandparents. A Bronx Child Custody Lawyer said the Court of Appeals has made it unequivocally clear that biological or legal strangers to a child have no standing under these statutes to pursue custody or visitation.

In a 1978 case, the Court of Appeals declined to expand the definition of parent under New York’s applicable statutes to include nonparents. The case involved a domestic partner who, like the petitioner herein, had acted as a parent and been treated as one to the subject child. The Court held: “Section 70 gives parents the right to bring proceedings to ensure their proper exercise of their care, custody and control. We decline petitioner’s invitation to read the term parent in section 70 to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child’s parents and who wish to continue visitation with the child.” The Supreme Court, after the 1987 case, addressed the issue of standing and biological strangers in 2000 case. The Court held that a Washington State statute, which gave any person the right to petition for visitation, could not be relied upon to support an order of visitation with grandparents over the objections of a fit biological mother. The Supreme Court determined that the statute, as applied, violated the mother’s fundamental constitutional right to make decisions concerning the raising of her own children. A parent’s interest in the care, custody and control of children was viewed by the Court as a liberty interest protected under the 14th Amendment to the United States Constitution.

The Court said that the decision in the 1987 case did not obliterate the doctrine of extraordinary circumstances, which is recognized by New York courts and allows a third party to assert rights over a child without the consent of the child’s biological parents. Following a preliminary finding of extraordinary circumstances, the court may proceed to determine an underlying child custody or visitation petition using the “best interest” standard. Extraordinary circumstances are, however, construed narrowly. The State may not deprive a parent of the custody of a child absent “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” A Bronx Child Custody Lawyer said there are no allegations before the court that rise to the level of extraordinary circumstances in this case.

Petitioner asserts that the legal doctrine of equitable estoppel prohibits the respondent from disclaiming petitioner’s parenthood of the subject child. The doctrine of equitable estoppel is imposed by law in the interest of fairness to prevent the enforcement of rights which would work a fraud or injustice upon the person against whom enforcement is sought. Prior to the decision of the 1987 case, the doctrine was commonly invoked to prevent a biological parent from denying visitation to a legal stranger in cases where the biological parent actively nurtured and encouraged a parent-child relationship. Petitioner argues that, even in the aftermath of the 1987 case, this court should embrace the principle of equitable estoppel as a justifiable basis to provide him with visitation rights even though he is otherwise a legal stranger to the subject child. He is, in essence, asking the court to ignore the Court of Appeals and apply the doctrine of equitable estoppel to confer standing on him. Presently, three of New York’s four Appellate Divisions have considered whether the doctrine of equitable estoppel still exists to establish standing rights for a nonparent in child custody and visitation cases after the 1987 case. They have held that, after the said case, the doctrine of equitable estoppel no longer exists to confer standing on legal and biological strangers. There is no First Department ruling directly on point with the issue raised by this case. The legal doctrine of stare decisis, however, requires this court to follow the precedents on point and established by the Appellate Divisions for any of the other three departments. The current law among the Second, Third and Fourth Departments is in accord with the Court of Appeals ruling in the 1987 case. Simply put, the doctrine of equitable estoppel may not be used to confer standing on legal strangers seeking child custody or visitation. While the court does appreciate that the holdings of the Appellate Divisions are controversial, the “legislature or courts higher than this one must make changes, if any to the existing law.” Accordingly, the Court held that the petition for visitation is dismissed. The acknowledgment of paternity is vacated. The biological father’s petition for paternity is granted and the court will issue an order of filiation. The respondent’s family offense petition is the only Family Court petition which awaits disposition.

The rule is that legal strangers to a child have no standing under these statutes to pursue custody or visitation. It is hard for a stranger to have raised a child as his own, give his name, telling the rest of the world that he was the child’s father, and eventually be divested of the child’s custody. If you are involved in a similar case, seek the advice of a Bronx Child Custody Attorney and Bronx Family Attorney in order to know the possible rights that you may have over the subject child. Call us at Stephen Bilkis and Associates for free consultation. Our Bronx Divorce Attorney will be willing to entertain you.

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