Mind the Gap: Same-Sex Parents and New York Custodial Law

44th Street Notes "“ New York City Bar Association Newsletter
January 23, 2010

On February 17th, the New York State Court of Appeals will hear two cases that, for the first time in nearly two decades, will consider issues of same-sex parents and custodial rights and obligations. The cases, Debra H. v Janice R. and H.M. v E.T., present nearly opposite situations, but expose a large question in New York State’s legal construction of “family’ and what it means for the state’s charge to protect the best interests of New York’s children.

Debra H. and H.M. represent opposite sides of the same coin: Debra H. finds a woman seeking custody and visitation rights to her non-biological, non-adoptive child; H.M. finds a woman seeking child support from a former partner. The children in both cases were conceived using Assisted Reproductive Technologies (ART). The couples in both cases are lesbian women who were formerly in committed relationships, with one woman a biological parent and the other not. Both cases show that some children, born out of “traditional’ family settings, can fall through legal holes that others do not.

“The rights discussed in these cases are so basic,” said Carmelyn Malalis, Chair of the City Bar’s Lesbian, Gay, Bisexual and Transgender Rights Committee, which was joined by several other City Bar committees in filing amicus briefs on both cases. “When reading the briefs, what strikes me is how same sex families are denied very fundamental rights. Same sex couples are forced to defend their families in a way that opposite sex couples are not.”

Defining “Family,’ “Best Interests’

In 1991, the New York Court of Appeals case Matter of Alison D. v Virginia M. interpreted Domestic Relations Law (DRL) §70, a statute that allows for challenges to child custody, as applying to biological or adopted parents. Since then, the decision has been interpreted to preclude the use of equitable estoppel to parties seeking custody or visitation of non-biological, non-adoptive children born into same-sex relationships. Equitable estoppel, according to the City Bar’s briefs, is meant to ensure that children receive either financial support from an absent parent, or have access to a caring parent who wants to be involved in the child’s life.

Other cases involving non-biological, non-adoptive parents go back as far as 1964, when the Suffolk County Supreme Court ruled that a negligent husband should support his wife’s child conceived through ART; in 1974, the New York legislature partially codified this precedent, writing DRL §73. DRL 73 deals specifically with children born of ART, stating that both parents consenting to conception are bound to parental duties.

A departure from this narrow construction of “parent’ and “family’ occurred in 2006 with the case Shondel v. Mark, in which the Court of Appeals equitably estopped a man from abandoning a non-biological, non-adoptive child he had helped raise. In that ruling parentage was defined as something beyond biology and legal adoption, but as a consenting agreement to provide support for a child.

The Third Department noted in the Shondel case that if the Domestic Relations Law only applies to one subset of children, then it directly counters the state policy of “promoting the best interests of children.”

According to statistics cited in the City Bar’s H.M. amicus, in 2005 there were approximately 50,854 same-sex couples in the state of New York, and nearly 18,000 children living in households headed by same-sex partners. The nearly 20 years of Alison-based rulings have had profound effects on multitudes of nontraditional families.

Debra H. v Janice R.

In Debra H., a non-biological, non-adoptive mother, Debra, is seeking custody and visitation of a child born of ART to her former partner, Janice R. The child in question was born two months after the couple registered as domestic partners in New York and one month after they entered into a civil union in Vermont. The ART process was consented to by both Debra and Janice, and the petitioner-appellant was fully willing to participate as a parent in the child’s life.

The City Bar, along with six other lawyer organizations, first filed a brief urging the Court of Appeals to hear the case, to address the “disjunctions and severe iniqueties” in state parental status decisions after Shondel.

Now that the Court of Appeals has accepted the case, the City Bar has filed a brief on the merits, supporting the petitioner. The brief argues that Alison D. is outdated, its strict application ignores the needs of many families, and that to be consistent with the state’s child-centered public policy, “standing should be conferred evenhandedly to de facto parents in custody and visitation proceedings.”

H.M. v E.T.

In H.M., the petitioner-appellant is seeking support for her biological child born of ART from a now-absent same-sex partner. The Family Court hearing the case found that due to complications of the same-sex partnership and the out-of-state residency of the petitioner, the court did not have the jurisdiction to order equitable estoppel for the respondent. (N.Y.Fam.Ct. 2007. 16 Misc.3d 1136(A))

The City Bar’s amicus argues that the Family Court does indeed have the subject matter jurisdiction to adjudicate a woman liable for support of a child she intentionally caused to bring into the world. The brief supports the petitioner, arguing that children born of ART must be able to seek support from intended parents, and that estoppel does apply to adults who cause a child to be born with promises of support.

The brief states, “It is critical that H.M and others like her have an adequate forum in which to seek child support from these individuals ““ whether male or female ““ who, after causing a child to be brought into the world, attempt to walk away from their parental obligations.” It continues, “Failure to recognize such a forum would leave out-of-state children whose intended second parents continue to reside in New York without an avenue to seek support.”

If the New York Family Court cannot rule on this, the brief continues, it would “have the perverse effect of rendering New York a haven for parents escaping their support obligations.”

Into the Future of Same-Sex Parental Decisions

Malalis observed that the ability of same-sex couples to legally marry in New York would clear up many of the issues in these kinds of child support and visitation cases. If couples had formally-recognized marriages, it could be easier to apply equitable estoppel to parents seeking or avoiding obligations.

“The happenstance of which parent is biologically related to the child and which is not …should have no bearing on the binding commitments made by the adults,” the City Bar’s brief on the H.M case states. “Nor should the courts turn their backs on children in non-traditional families based on arguments that only when the legislature enacts specific provisions precisely envisioning such families can a forum and remedy be found to enforce the best interests of children.”

“We hope [these cases] show that these families are just like any others,” said Malalis. “Hopefully, they can soon receive those same rights afforded to other families.”