IN RE: KELLY C. (Anonymous) (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, Kelly C. appeals, and Chaya E. and the child R.E. separately cross-appeal, by permission, from an order of the Family Court, Kings County (Amanda E. White, J.), dated April 12, 2024.  The order, insofar as appealed from, granted those branches of the separate motions of Chaya E. and the attorney for the children which were to confirm so much of a report of a referee (Lisa Aschkenasy, Ct. Atty. Ref.) dated January 2, 2024, as, after a hearing, determined that Kelly C. failed to prove by clear and convincing evidence that Chaya E. should be equitably estopped from denying that Kelly C. is a parent to the child N.E. and, in effect, for determinations that Kelly C. failed to prove by clear and convincing evidence that a preconception agreement existed between the parties as to the child N.E. and that Kelly C. failed to establish standing to seek parental access with the child N. E., and denied those branches of Kelly C.'s motion which were to reject that portion of the referee's report and, in effect, for determinations that Kelly C. proved by clear and convincing evidence that a preconception agreement existed between the parties as to the child N.E. and that Kelly C. established standing to seek parental access with the child N.E. The order, insofar as cross-appealed from, denied those branches of the separate motions of Chaya E. and the attorney for the children which were to reject so much of the referee's report as determined that Kelly C. proved by clear and convincing evidence that a preconception agreement existed between the parties as to the child R.E. and, in effect, that Kelly C. established standing to seek parental access with the child R. E., and granted that branch of Kelly C.'s motion which was to confirm that portion of the referee's report.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see Family Ct Act § 1112[a] );  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts, those branches of the separate motions of Chaya E. and the attorney for the children which were, in effect, for determinations that Kelly C. failed to prove by clear and convincing evidence that a preconception agreement existed between the parties as to the child N.E. and that Kelly C. failed to establish standing to seek parental access with the child N.E. are denied, that branch of Kelly C.'s motion which was, in effect, for determinations that Kelly C. proved by clear and convincing evidence that a preconception agreement existed between the parties as to the child N.E. and that Kelly C. established standing to seek parental access with the child N.E. is granted, those branches of the separate motions of Chaya E. and the attorney for the children which were to confirm so much of the referee's report as determined that Kelly C. failed to prove by clear and convincing evidence that Chaya E. should be equitably estopped from denying that Kelly C. is a parent to the child N.E. and that branch of Kelly C.'s motion which was to reject that portion of the referee's report are denied as academic, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to Kelly C. payable by Chaya E.

Kelly C. (hereinafter Kelly) and Chaya E. (hereinafter Chaya) began a romantic relationship in 2009 and cohabited from 2009 until 2017, during which time Chaya E. underwent intrauterine insemination and gave birth to two children:  R. E., born in 2011, and N. E., born in 2013.  In June 2017, Kelly commenced this proceeding pursuant to Family Court Act article 6 for parental access with the children, contending that she and Chaya had entered into a preconception agreement to conceive and parent the children together.  The matter was referred to a referee to hear and report on the issue of standing.  After a hearing, in a report dated January 2, 2024, the referee credited certain testimony by Kelly and nonparty witnesses who testified on Kelly's behalf, and recommended, inter alia, (1) that the Family Court determine that Kelly proved by clear and convincing evidence that the parties entered into a preconception agreement to conceive and parent multiple children, which was in effect at the time of R. E.'s conception, (2) that the court consider whether the parties' agreement terminated prior to N. E.'s conception, and (3) that the court determine that Kelly failed to meet her burden of proof in support of her alternative contention that Chaya should be equitably estopped from denying that Kelly is a parent to N. E.

In an order dated April 12, 2024, the Family Court adopted the referee's credibility and factual findings.  The court confirmed the referee's determinations that Kelly proved by clear and convincing evidence the existence of a preconception agreement with respect to R.E. and, in effect, that Kelly had thereby established standing to seek parental access with R.E. The court also determined, however, that the parties' agreement terminated prior to N. E.'s conception and, therefore, Kelly failed to prove by clear and convincing evidence the existence of a preconception agreement with respect to N.E. The court confirmed the referee's determination that Kelly failed, in the alternative, to establish by clear and convincing evidence that Chaya should be equitably estopped from denying that Kelly is a parent to N.E. The court therefore determined that Kelly failed to establish standing to seek parental access with N.E. Kelly appeals, and Chaya and R.E. separately cross-appeal.

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (Wells Fargo Bank, N.A. v. Emanuel, 208 A.D.3d 825, 826, 172 N.Y.S.3d 624 (2022) [internal quotation marks omitted];  see Matter of Stewart v. Moseley, 102 A.D.3d 973, 958 N.Y.S.2d 598 (2013)).  “ ‘Great deference should be given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses' ” (Matter of Alterman v. Shmushkovich, 183 A.D.3d 559, 560, 121 N.Y.S.3d 672 (2020), quoting Matter of Ferrer v. Brown, 165 A.D.3d 929, 930, 86 N.Y.S.3d 208 (2018)).

“[A] partner without a biological or adoptive relation to a child must first demonstrate his or her status as a parent in order to petition for custody or parental access pursuant to Domestic Relations Law § 70” (Matter of Kerry D. v. Deena D., 230 A.D.3d 492, 494, 217 N.Y.S.3d 143 (2024)).  “[W]here a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70” (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 14, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016)).  “ ‘Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened’ ” (Matter of Preller v. Collesano, 250 A.D.3d 949, 950, 261 N.Y.S.3d 684 (2026), quoting Matter of Gail R. [Barron], 67 A.D.3d 808, 811, 891 N.Y.S.2d 411 (2009)).

Here, the Family Court properly adopted the referee's determination to credit Kelly's testimony regarding the parties' plan to have multiple children together using the same sperm donor and to raise the children together as co-parents.  As the referee noted, Kelly's testimony on the subject was corroborated by the testimony of nonparty witnesses, as well as by the parties' contemporaneous private communications that were introduced into evidence.  The referee specifically recommended, among other things, that the court “give full weight and consideration” to the testimony of the parties' mutual friend who was present for multiple conversations between the parties in the months leading to each child's conception and birth, and whom the referee perceived to have no motivation to lie.  We find no basis to disturb the referee's credibility findings and the court's determination to adopt them, as these findings are substantially supported by the record (see Matter of Ferrer v. Brown, 165 A.D.3d at 930, 86 N.Y.S.3d 208;  Matter of Stewart v. Moseley, 102 A.D.3d at 973, 958 N.Y.S.2d 598).

Moreover, based on the credible evidence before the Family Court, the court properly confirmed the referee's determinations that Kelly demonstrated by clear and convincing evidence that the parties entered into a preconception agreement to conceive and co-parent R.E. and, in effect, that Kelly established standing to seek parental access with R.E. (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14–15, 39 N.Y.S.3d 89, 61 N.E.3d 488).  The credited witness testimony and other evidence in the record demonstrated, inter alia, that prior to R. E.'s conception, the parties were in a committed romantic relationship and had engaged in multiple extensive discussions about starting a family together, including conversations about their respective parenting styles and intended religious and cultural upbringing of future children.  The parties together chose a sperm donor who shared Kelly's physical characteristics.  Kelly then participated in choosing one of R. E.'s names and in preparing for R. E.'s arrival by acquiring nursery furniture and baby gear.  Kelly was present at the birth of R. E., and both parties participated in R. E.'s care.  The totality of the record demonstrated, by clear and convincing evidence, that the parties entered into a preconception agreement to raise and conceive children together and the agreement was in effect at the time of R. E.'s conception (see Matter of Scott v. Adrat, 196 A.D.3d 585, 587–588, 151 N.Y.S.3d 431 (2021);  Matter of Heather NN. v. Vinnette OO., 180 A.D.3d 57, 61–62, 116 N.Y.S.3d 740 (2019)).  Accordingly, the court properly determined that Kelly established standing to seek parental access with R.E. (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14–15, 39 N.Y.S.3d 89, 61 N.E.3d 488).

However, the Family Court improperly concluded that Kelly failed to meet her burden of proof as to N.E. because the parties' preconception agreement terminated before that child's conception (see Matter of Scott v. Adrat, 196 A.D.3d at 587–588, 151 N.Y.S.3d 431;  cf.  Matter of K.G. v. C.H., 163 A.D.3d 67, 79 N.Y.S.3d 166 (2018)).  This Court's scope of review is broad:  unlike the Court of Appeals, this Court has the authority to review questions of fact as well as law, and, upon such review, may reverse a determination that is not supported by the record even where the underlying credibility findings are undisturbed (see CPLR 5501[c];  People v. Turriago, 90 N.Y.2d 77, 84, 659 N.Y.S.2d 183, 681 N.E.2d 350 (1997)).

Here, the Family Court's conclusion that the parties' relationship deteriorated “between” the births of R.E. and N. E., and the court's further conclusion that the parties' co-parenting agreement also terminated at that time, appear to be based upon a statement in the referee's report that the “parties' relationship changed and deteriorated between [R. E.'s] and [N. E.'s] birth[s],” without reference to any record evidence.  However, this statement is inconsistent with the referee's earlier factual finding that the parties' relationship deteriorated “[a]fter” N.E. was born—a finding that is supported by the evidence.  In testimony that was fully credited by both the referee and the court, the parties' mutual friend described how the parties discussed and planned for the conception and birth of N.E. in much the same manner as they planned for R.E. The testimony of multiple witnesses confirmed that both children were born during the parties' relationship, conceived through the same reproductive process using the same donor whom the parties chose together, and raised in the same household in their early years.  Moreover, the court also adopted the referee's factual finding that although the parties' personal relationship deteriorated over time, Chaya “continued to imply or to specifically refer to [Kelly] as the children's other parent,” and the irreparable breakdown in their co-parenting relationship did not occur until Chaya unilaterally enrolled R.E. in kindergarten in a school to which Kelly strenuously objected, an event that occurred well after the birth of N.E. Based on this record, the evidence did not support a determination that the parties' preconception agreement terminated prior to N. E.'s conception (cf.  Matter of K.G. v. C.H., 163 A.D.3d at 77, 79 N.Y.S.3d 166).

In reaching this result, we note that New York is not unique in recognizing parentage based upon the mutual preconception agreement of two parties.  Vermont has held that “a nonbiological parent's legal status may arise from the parents' mutual agreement to bring a child into their family and raise the child as co-parents, their actual conduct in doing so, and the absence of any other putative parent” (Sinnott v. Peck, 2017 VT 115, ¶23, 206 Vt. 274, 284, 180 A.3d 560, 567 (2017)).  Pennsylvania, similarly, has adopted “intent-based parentage” as a pathway to establishing legal parentage in the absence of biological relationship, adoption, marital presumption, or an enforceable assistive reproductive technology contract (Glover v. Junior, ––– Pa. ––––, 333 A.3d 323, 327[2025] ).  Many other states have expanded the scope of those who have standing to seek parental access to parties who function as de facto parents or psychological parents (see Conover v. Conover, 450 Md. 51, 71–73, 146 A.3d 433, 445–446 (2016)).

Contrary to the contention of the attorney for the children, an inquiry into the best interests of the children was not required to resolve the threshold determination of whether Kelly has standing pursuant to the rule articulated in Matter of Brooke S.B. to seek parental access with the children (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 28, 39 N.Y.S.3d 89, 61 N.E.3d 488;  Matter of Kerry D. v. Deena D., 230 A.D.3d at 494, 217 N.Y.S.3d 143).  The question of whether parental access with a child and a nonbiological, nonadoptive parent is in the best interests of the child is a separate inquiry, addressed only after the threshold issue of parental standing has already been determined (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 28, 39 N.Y.S.3d 89, 61 N.E.3d 488;  Matter of Kerry D. v. Deena D., 230 A.D.3d at 494, 217 N.Y.S.3d 143).  This matter must therefore be remitted to the Family Court, Kings County, for a hearing to determine the best interests of N.E. with respect to parental access with Kelly (see Domestic Relations Law § 70).

In light of our determination, the parties' contentions regarding the issue of equitable estoppel have been rendered academic.

CHAMBERS, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.