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Petitioner Seeks Support from Same Sex Partner


This appeal presents the issue whether Family Court has subject matter jurisdiction to adjudicate a child support petition brought pursuant to the Uniform Interstate Family Support Act (UIFSA) by a biological parent seeking child support from her former same-sex partner. A New York Family Lawyer said it is held that Family Court possesses subject matter jurisdiction to hear such a petition.

A Manhattan Family Lawyer said the mother seeks child support from her same sex partner. According to the mother’s allegations, which must be taken as true for present purposes, the parties were involved in a romantic relationship in New York from 1989 through 1995, and cohabited during much, if not all, of that period. During the first year of their relationship, they planned to conceive and raise a child together, discussing, among other things, available methods of conception, child-rearing practices, and whether the child would be raised as a sibling of the same sex partner’s children from a prior relationship. In 1993, after many failed attempts, the mother became pregnant by artificial insemination. The same sex partner performed the procedure by which the mother was inseminated.
The mother gave birth to a son and her same sex partner was present at the delivery and cut the umbilical cord, and the parties shared the expenses associated with the conception and birth of the child. After the child’s birth, both parties participated in his care. However, four months after the child was born, the same sex partner ended the relationship. The mother, a Canadian citizen, moved into her parents’ residence in Montreal with the child. An attempted reconciliation in 1997 failed, although the same sex partner continued to provide the mother with gifts for the child and monetary contributions for the child’s care at unspecified times after the parties’ separation.

A New York Child Custody Lawyer said in 2006, the mother filed an application in Ontario, Canada, seeking a declaration of parentage and an order of child support establishing monthly payments retroactive to the child’s birth. Pursuant to the Uniform Interstate Family Support Act, the mother’s application was transferred to County Family Court in Rockland.

In her appearance before the Family Court Support Magistrate the mother’s same sex partner moved to dismiss the petition on jurisdictional grounds. The Support Magistrate dismissed the petition, agreeing with the same sex partner that no legal basis for jurisdiction existed. The mother filed written objections to the Support Magistrate’s order, and Family Court subsequently reversed the order of dismissal and ordered a hearing to determine whether the same sex partner should be equitably estopped from denying parentage and child support obligations.

The mother’s same sex partner appealed. The Appellate Division reversed and reinstated the Support Magistrate’s order dismissing the petition for lack of subject matter jurisdiction. The mother appeals as of right pursuant to Civil Practice Law and Rules (CPLR) from the Appellate Division order reinstating the Support Magistrate’s order of dismissal, and is now reversed.

A Manhattan Child Custody Lawyer said in 1996, the United States Congress required each state to enact the Uniform Interstate Family Support Act, to ensure uniformity in interstate actions for the establishment, enforcement, and modification of spousal and child support orders, New York adopted UIFSA in 1997, designating Family Court as our UIFSA tribunal.

Article VI of the State Constitution establishes the family court of the state of New York. It has been previously explained that Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute. Thus, in addition to establishing Family Court, the Constitution enumerates the powers thereof. Among the classes of actions and proceedings over which the Constitution grants Family Court jurisdiction are proceedings to determine the support of the dependents except for child support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage. Family Court Act more specifically defines Family Court’s role with respect to support.
Family Court Act provides, among other things, that the parents of a child under the age of twenty-one years are chargeable with the child support and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.

Family Court indisputably has jurisdiction to determine whether an individual parent-regardless of gender-is responsible for the support of a child. Moreover, statutory jurisdiction-as Family Court has-carries with it such ancillary jurisdiction as is necessary to fulfill the court’s core function. Thus, because Family Court unquestionably has the subject matter jurisdiction to ascertain the child support obligations of a female parent, Family Court also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child’s parent.

Family Court Act establishes the public policy of the State in favor of obligating individuals, regardless of gender, to provide support for their children. The dissent argues that such relief can be afforded only in Supreme Court, a court of original trial jurisdiction. However, as the two dissenting Justices found, Family Court and Supreme Court have coextensive authority-concurrent jurisdiction-in relation to child support matters. The Domestic Relations Law and the Family Court Act are identical in the establishment of statewide child support guidelines applicable to all child support proceedings, whether brought initially in Family Court or brought in Supreme Court as ancillary to a matrimonial action or child custody proceeding.

In this child support petition brought under the Uniform Interstate Family Support Act (UIFSA), the biological parent of a child seeks to charge her former same-sex partner, with the financial responsibility for child support who was planned, conceived and born during the couple’s relationship, but who never had any continuing relationship with her same sex partner, who ended the relationship with her when the child was three months old. Because Family Court lacks subject matter jurisdiction to hear such a petition, I respectfully dissent and would affirm the order of the Appellate Division.

It is well settled that Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. In addition, Family Court has no general equity jurisdiction; as such, it cannot grant equitable relief. The mother brought her petition to UIFSA and sought a declaration of parentage, a proceeding authorized by UIFSA. Family Court received the petition and is the responding tribunal under UIFSA, which states, a responding tribunal of this state shall apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings. This rule is applicable to proceedings for the determination of parentage under UIFSA. As such, UIFSA does not supplant or otherwise make changes in the procedural and substantive law of New York.

Under the clear and unambiguous language of the Family Court Act-the statute defining the powers of Family Court-the only proceeding similar to a proceeding for the determination of parentage is the Paternity Proceeding which provides a vehicle for determining whether a male is the father of a particular child. The majority argues, though, that Family Court has authority under Family Court Act to hear the mother’s child support petition.

In short, because the mother asserts that her former same sex partner is the child’s parent, and is therefore chargeable with the child’s support, this case is within the Family Court’s jurisdiction. There is no occasion to decide whether it is also, as the Family Court and the Appellate Division dissent concluded, within that court’s jurisdiction.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of questions raised but not determined on the appeal to that court.

Being a parent does not end in giving birth or conceiving a child. Parental role never ends and it the duty of every parent whether biological or not, to make sure that her children’s needs are being met. A New York Child Support Lawyer together with a New York City Child Custody Attorney from Stephen Bilkis and Associates can help you explore your legal options.

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