Child Custody, Same Sex Couples, Biological Strangers & Parenting Time

Female couple cuddling with their baby son

The law in New York is that a non-biological, non-adoptive parent does not have standing to proceed in a court for custody or parenting time.  There is, however, a statute that allows grandparents standing to petition for custody and visitation under certain circumstances, which I have previously blogged about.  In Debra H. v Janice R., 14 N.Y.3d 576 (N.Y. 2010), New York’s highest court, the Court of Appeals reaffirmed its rule that neither parents by the doctrine of equitable estoppel or people standing “in loco-parentis” to a child has standing to seek custody and visitation or parenting time in court.  The rule would be then that biological strangers that have not adopted a child cannot proceed in court in New York for custody and visitation.

Still applying this precedent, though, two different cases decided in different parts of New York, ended up with different results.  In one, the same sex partner was allowed to proceed with her custody case, in the other a domestic partner was found not to have standing.  The law was re-iterated in the Fourth Appellate Department, which covers part of upstate New York just this year, in 2015 in the case of Matter of Barone v Chapman-Cleland, 129 A.D.3d 1578 (2015) which stated that biology or adoption under our current statutes define what a parent is and stated that any change of this needs to come from the legislature.  In that case a same sex partner to a biological parent tried unsuccessfully to proceed in court on a case of custody and visitation.  The court ruled that this former partner did not have standing to proceed in court as a biological stranger that never adopted the child, despite the possibility that the person was very much like a parent to the child. 

However, the Second Appellate Department, which covers Nassau County and Suffolk County Long Island as well as parts of New York City and the surrounding areas, recently allowed a domestic partner to proceed on a custody and visitation petition based on the doctrine of judicial estoppel, not on equitable estoppel. Matter of Arriaga v. Dukoff, 123 AD3d 1023 (2d Dept. 2014).  The non biological parent and domestic partner was found, in a support proceeding, to be chargeable with support and therefore a parent, for support purposes by the doctrine of equitable estoppel.  In the custody and parenting time case for this couple, the court allowed that non-biological relation to the child to proceed with the child custody and parenting time case based on the doctrine of “judicial estoppel” rather than “equitable estoppel”.  Accordingly, the Second Department reasoned that it was not contradicting the established precedent that equitable estoppel does not confer the right to proceed for custody or visitation.  Rather, the court reasoned that since the biological parent took the position that based on equitable estoppel the non-biological parent should be ruled to be a parent for support purposes, and won on that position, she should be “judicially estopped” from asserting a different position in the custody and parenting time case.

Just to review “equitable estoppel” is a finding by a court, if the court finds the criteria met and the best interests of the child(ren) require the finding, that a person is the father or parent of a child when because they have held themselves out as the father.  This can commonly be done by supporting the child or exercising parenting time or visitation. “Judicial estoppel” on the other hand, is an estoppel that prevents someone from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings in which proceedings they were victorious.

Ever since the same sex marriage laws came into effect, the laws in relation to children is still a developing area. There is a presumption in New York that a husband of a child born to a parent of a married couple is the parent of that child.  It seems like semantics, and maybe it is, but the state of the law, as it is, still makes adoption by same sex partners the safest way to ensure parental rights.

For help sorting through the foregoing or with your questions about family or matrimonial law, contact us about your free initial consultation either in office or on the phone. It would be our pleasure to speak with you about it.