IN RE: J.C. (2000)

Petitioner, J.C., filed a petition seeking visitation with the minor children, B.P.T.-C. (dob March 13, 1996) and J.M.T.-C. (dob February 20, 1998), who are the biological children of her former live-in partner.   Respondent-mother moved to dismiss the petition upon the ground that petitioner lacked standing to petition the court for visitation.   A Law Guardian was appointed to represent the interests of the subject children.   Both the Law Guardian and petitioner opposed Respondent's motion.

Petitioner alleges that the parties and the two children at issue were a “typical” family in most respects.   Prior to the birth of the children, the parties, in preparing for their future together and for the future of the children they were planning to have, executed reciprocal wills, reciprocal designations of conservator, and reciprocal powers of attorney.   Both parties participated in planning for respondent's pregnancies and for the birth of the children, who were born to respondent, C.T., by means of artificial insemination.   The parties chose names for the children and gave the children both of their surnames.   Together they decided that petitioner would support the family as the sole wage earner, while respondent stayed at home as a caretaker for the children.

Petitioner further alleges that from the birth of each child and through their formative years, respondent fostered a mother-child relationship between her children and petitioner.   According to the children's Law Guardian, the children refer to petitioner as “Moma”. The parties and the children lived together as a family, and represented themselves to the world as a family.   Both parties considered themselves, and were considered by others, to be the “mothers” of the children.   The children also considered both parties to be their mothers.   This arrangement continued until the parties separated.   Initially, after the separation, respondent permitted petitioner to visit with the children but then she terminated the visitation.   This proceeding ensued.

 Respondent does not deny the facts asserted by petitioner with respect to their relationship or with respect to petitioner's actual, as opposed to legal, relationship to the children.   However, she argues that because the parties were in a same sex relationship, the children's relationship with petitioner is not protected by statute (see FCA § 651;  Domestic Relations Law §§ 240;  71-72).   Respondent asserts, in reliance upon the Court of Appeals decision in Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 655-7, 569 N.Y.S.2d 586, 572 N.E.2d 27, that as the biological mother of the children, it is her right to determine with whom her children associate, and that petitioner, who is neither a biological nor an adoptive parent, has no standing to assert any rights with respect to the subject children.

 In Matter of Alison D. v. Virginia M., supra, at pp. 655-7, 569 N.Y.S.2d 586, 572 N.E.2d 27, the Court of Appeals held that same sex partners who are “biological strangers” to the children are not “parents” for purposes of New York's Domestic Relations Law, and, thus, have no standing under Domestic Relations Law section 70 to petition for visitation when the children at issue are properly within the custody of a fit legal or biological parent.   In reaching this conclusion, the Court reaffirmed the traditional New York rule that visitation is a modified form of custody, and that, as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity (see also Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 144, 517 N.Y.S.2d 932, 511 N.E.2d 75).   The Court of Appeals also affirmed the Appellate Division's ruling in Matter of Alison D. v. Virginia M., 155 A.D.2d 11, 14-15, 552 N.Y.S.2d 321, that New York's exceptional or extraordinary circumstances doctrine does not apply to such circumstances.

Petitioner, however, does not rely on the doctrine of exceptional circumstance.   Petitioner relies exclusively on the doctrine of equitable estoppel, citing, in support, the decision of the Appellate Division, Second Department in Jean Maby H. v. Joseph H., 246 A.D.2d 282, 676 N.Y.S.2d 677.   In Jean Maby H. v. Joseph H. (supra), the petitioner mother started living with the respondent, non-biological parent, shortly before the birth of her child.   The parties subsequently married, and the defendant acted as the child's father until the parties divorced.   The child referred to the defendant as “Daddy”, and considered him to be her father.   The trial court, relying on Matter of Alison D. v. Virginia M. (supra), determined that the defendant had no standing to seek custody and visitation.   The Appellate Division, Second Department reversed, finding that the Court of Appeals decisions in Matter of Alison D. v. Virginia M. (supra), and in Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 517 N.Y.S.2d 932, 511 N.E.2d 75, did not create a blanket rule to be applied in all cases involving unrelated persons seeking to establish custody or visitation in the face of a fit biological parent, without regard to the best interests of the child.   The Court, in relying on Matter of Baby Boy C., 84 N.Y.2d 91, 615 N.Y.S.2d 318, 638 N.E.2d 963, stated (at 287, 676 N.Y.S.2d 677) that the “ ‘[C]ourts [of this State] [are] more inclined to impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship.’ ”

 As noted by Judge Kaye in her dissenting opinion in Matter of Alison D. v. Virginia M. (supra), there is a distinction between visitation and custody, which makes it inappropriate to apply rigid or bright line rules developed within the context of custody to matters of visitation (77 N.Y.2d at pp. 660-1, 569 N.Y.S.2d 586, 572 N.E.2d 27;  see Matter of Ronald FF. v. Cindy GG. (supra);  Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377).   Indeed, there are cases in this state in which the biological parent has been equitably estopped from denying parental rights to persons who are neither biological nor adoptive parents and who would thus not qualify for standing as a “parent” under the Domestic Relations Law (see e.g. Matter of Richard W. v. Roberta Y., 240 A.D.2d 812, 658 N.Y.S.2d 506;  Matter of Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d 110).

The rationale for applying equitable estoppel in these cases generally has been to protect the status and corresponding rights of children who were led to believe that they were the children of both parties.  Jean Maby H. v. Joseph H. (supra ), while falling within the parameters of a traditional application of the doctrine, also demonstrates that the biological parental prerogative, as articulated in Matter of Ronald FF. v. Cindy GG. (supra), is not insurmountable, and that Matter of Alison D. v. Virginia M. (supra) is not to be applied inflexibly to all instances involving non-adoptive and non-biological parents who have, with the encouragement of the biological parent, maintained a significant parental role in the children's lives.

 As has often been stated, visitation is not only the right of a non-custodial parent, it is also a right of the children (Weiss v. Weiss, supra, Matter of Nancy M. v. Brian M., 227 A.D.2d 404, 642 N.Y.S.2d 66).   The United States Supreme Court has recognized that children have a strong interest in maintaining a connection to adults who love and provide for them, and with whom they have developed emotional and familial bonds as a result of shared daily life (see Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614;  Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14;  in accord see Kaye, J. dissent, in Matter of Alison D. v. Virginia M., supra).

More and more children are developing parental relationships with persons falling outside of traditionally recognized families, and cases involving same sex partnerships are coming into the courts with increasing frequency across the country (see V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 [2000];  Carter v. Brodrick, 644 P.2d 850, 855 [Alaska 1982];  Custody of C.C.R.S., 892 P.2d 246, 247 [Colo. 1995];  Simpson v. Simpson, 586 S.W.2d 33, 35 [Ky. 1979];  E.N.O. v. L.M.M., 429 Mass. 824, 832-4, 711 N.E.2d 886, 893-4 [1999];  Matter of J.W.F., 799 P.2d 710, 714 [Utah 1990];  Custody of H.S.H.-K., 193 Wis.2d 649, 658, 533 N.W.2d 419, 421 [1995];  cf., compare, Curiale v. Reagan, 222 Cal.App.3d 1597, 272 Cal.Rptr. 520 [1990];  Matter of CBL, 309 Ill.App.3d 888, 243 Ill.Dec. 284, 723 N.E.2d 316 [1999];   Kazmierazak v. Query, 736 So.2d 106 [Fla. 1999];  Liston v. Pyles, 1997 WL 467327, 1997 Ohio App. LEXIS 3627 [Ohio, 10th Dist.1997];  In re Thompson, 11 S.W.3d 913 [Tenn.Ct.App.1999];  Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 [1997] ).

Some states have amended their custody and visitation statutes to provide a framework from which to assess custody and visitation issues that arise outside of the context of either adoptive or biological parents (see e.g. Ariz.Rev.Stat.Annot. section 25-415[G][1] [West 2000];  Minn.Stat.Annot. section 257.022[2b] [West 1999];  Tex.Fam.Code Ann. section 102.003[a][9];  1999 Nev.Stat. 125C.050[3] ).   Other state statutes contain language that is broad enough to encompass such situations, which allows the courts in those states to consider circumstances which indicate a need to expand the definition of parent in order to accommodate the best interests of the children (see e.g. N.J.Stat.Annot. Section 9:2-13[f] ).

As noted by Judge Kaye in her dissenting opinion in Matter of Alison D. v. Virginia M. (supra), New York's Domestic Relations Law, which is incorporated by reference under section 651(b) of the Family Court Act (see Matter of Lynda A.H. v. Diane T.O., 243 A.D.2d 24, 673 N.Y.S.2d 989), does not define the term “parent” (supra at p. 659, 569 N.Y.S.2d 586, 572 N.E.2d 27).   While the majority of the Court of Appeals in Matter of Alison D. v. Virginia M. rejected the petitioner's assertion that she was a “parent by estoppel” within the meaning of Domestic Relations Law section 70, the issue of whether a biological parent may be equitably estopped from denying a same sex partner visitation, due to his or her own actions in creating, nurturing and encouraging a parent-child relationship, was not directly addressed.   Accordingly, this Court determines that it is not foreclosed from considering whether the equitable estoppel doctrine should be applied to this matter.

In this matter, as in Jean Maby H. (supra), in which respondent did not merely acquiesce but took affirmative actions to encourage a parent-child relationship between petitioner and the children, it would be unconscionable to allow the respondent to unilaterally terminate that relationship without the opportunity for a Court to make a determination as to what is in the best interests of the children.

 The Court must determine whether there is an “ operative” parent-child relationship which can be equitably protected.   Recently, the Supreme Court of New Jersey applied a test articulated by the Supreme Court of Wisconsin in Custody of H.S.H-K., 193 Wis.2d 649, 658, 533 N.W. 419, 421 [1995] to determine when a demonstration of “de facto” or psychological parenthood would be sufficient to trigger standing to allow lesbian partners to obtain visitation (V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 [2000] ).   The New Jersey Supreme Court reasoned that psychological parent cases are a sub-category of “exceptional circumstance” cases, and although use of the “psychological parent” argument within the context of the exceptional or extraordinary circumstances doctrine has been rejected by the courts in New York (see Matter of Lynda A.H. v. Diane T.O., supra;  Matter of Burghdurf v. Rogers, 233 A.D.2d 713, 650 N.Y.S.2d 348), the elements of the test as articulated by the New Jersey and Minnesota Supreme Courts actually incorporate many of the factors which New York courts traditionally have considered in determining whether or not to apply the doctrine of equitable estoppel.

Under this test, if a non-biological or non-adoptive person, who is not otherwise granted statutory standing, seeks visitation with a child or children with whom he or she alleges a parental relationship, they must demonstrate:  (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;  (2) that the petitioner and the child lived together in the same household;  (3) that the petitioner assumed the obligations of parenthood by undertaking significant responsibility for the child's care, education and development, including contributions to the child's support, monetary or otherwise, without the expectation of financial compensation;  and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship which is parental in nature.

 The focus of the inquiry with respect to the first prong of the test is the intent of the legal parent during the formation and pendency of the third-party parent-child relationship, and requires a finding that the biological or adoptive parent's own actions led to the creation of the parental bond between the non-biological or non-adoptive party and the child.   Equally important is the petitioning party's assumption of the full panoply of parental obligations, as well as a demonstration that the child is actually psychologically bonded or dependent upon that person as a “parent”. Without these elements, there would be no basis for invoking the doctrine of equitable estoppel, even within the traditional framework (see e.g. Matter of Delcore v. Mansi, 262 A.D.2d 559, 559-60, 692 N.Y.S.2d 432).

The use of such a test is an appropriate way to balance the competing interests of the parties, as well as the interests of the children in maintaining contact with persons who are, at least to them, parents.   Application of the equitable estoppel argument to such cases, however, requires the use of a bifurcated analysis, similar to that employed within the context of grandparent visitation under Domestic Relations Law section 72 (see e.g. Richard YY. v. Sue ZZ., 249 A.D.2d 885, 673 N.Y.S.2d 219).

 In order to establish standing, the petitioner must demonstrate an actual and substantial parent-child relationship under the test articulated above.   If the petitioner establishes the existence of such a relationship and there is a basis for equitable intervention, then the court must determine whether visitation with the petitioner is in the best interests of the children.

 In this matter, the Law Guardian alleges in a brief submitted in support of the petition that the children are bonded to petitioner as a parent.   However, the court cannot satisfactorily determine whether petitioner should be allowed to invoke the equitable estoppel doctrine based solely upon the unsworn allegations of the Law Guardian or the affidavits submitted by the parties on the issue of standing.

Accordingly, respondent's motion to dismiss the petition is denied and the matter is scheduled for a hearing, to determine whether the petitioner has a real and substantial parental relationship with the children at issue.

JOAN O. COONEY, J.