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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: HEARING ORDERED ON INTERIM ACCESS IN SAME SEX CUSTODY CASE

The Appellate Division remanded a same sex custody matter to the lower court to consider equitably estopping the respondent mother from denying the petitioner’s parentage over her son. The mother had consistently opposed resuming access in both the lower court and the Appellate Division, as there was no authority for providing for same with one who is not a biological, adoptive or judicially determined parent. The lower court had previously ordered interim access to maintain consistency with the child and petitioner. It now had to address the interim access petition in view of the child’s best interests. It noted that the final determination of parenthood would be predicated on the child’s best interests.

The petitioner had asked for access time pending the completion of the evidentiary hearing. She asked the court to “not overly concern itself with specific statute or existing law” but rather apply the principle for the best interests of the child in determining all manner of visitation sought by a non-biological, non-adoptive, putative parent during the pendency of that parent’s petition seeking an order of judicially determined parenthood. The petitioner has also relied on the Court’s prior finding that access was warranted to maintain consistency with the child’s experience with the petitioner.

The mother opposed the resumption of access inasmuch as there was no authority, legal authority for same.

The history of this entire matter is worth noting. Previously, there had been a 36-day hearing in the matter where the petitioner rejected the Court’s offers to proceed on her unpled legal theory of equitable estoppel (see below for detailed explanation). On appeal thereafter, the same petitioner argued that she suffered harm by the Court’s failure to permit her to proceed on her unpled legal theory of equitable estoppel. The petitioner succeeded in that argument on appeal as the Appellate Division determined that the best interests of the child to be paramount, irrespective of any deficiencies in her pleadings and related to equitable estoppel or to the mother’s claim that petitioner had waived the issue.

The lower court then had no choice but to address the application for interim access in view of the child’s best interests notwithstanding the absence of specific statutory authority or applicable case law. The Court in determining whether the best interests of the child warrant resumption of access scheduled the matter for a framed hearing in March.

In the interim, both parties urged the Court to establish a criterion for equitable estoppel in order that any appointed forensic expert, as well as others, could be properly guided. The Court determined that parentage should be predicated on the best interests of the child and that it would determine and consider the extent in this case by which the petitioner, by clear and convincing evidence, could meet its definition of equitable estoppel defined as follows:

  1. Undertook full and permanent fiscal responsibilities for the child without expectation of financial compensation;

  2. Resided with the child;

  3. Affirmatively held out the child as her own, or what objective observation of the relationship by others in their community would demonstrate;

  4. Otherwise engaged in consistent caretaking of the child;

  5. Had been in a parental role for a length of time sufficient to have established with the child a bonded, dependent, parental relationship;

  6. Is recognized or acknowledged as parental by the child;

  7. Has a close and deep emotional bond with the child;

  8. Bonded a dependent relationship with the child, supported, or facilitated, affirmatively or impliedly, by the legal parent;

  9. Engaged in decision-making with the legal parent with respect to major issues concerning the child including, but not limited to, health, welfare, education, and any participation in organized religion;

  10. Is or was a part of any formalized relationship with the legal parent and/or the child; and

  11. How the abrupt or continued termination from any and all contact with the petitioner has, or would continue to, adversely affect the child, if at all.

The Court also noted that the criteria that it established presented no heightened legal barrier, or any unique challenge, or difficulty whatsoever for members of LGBTQ or other non-traditional families. Significantly, it also indicated that it remained available to address any such objection which may come to light as the matter proceeded. Finally, it noted that similar petitions are currently pending in various stages of litigation within and without the State of New York and that a number of Courts are contemporaneously establishing criteria for equitable estoppel as a result of different records made in the various courts.

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