Caroline Krauss-Browne and Margaret Canby

In our last chapter, we discussed how a man, who has no biological or adoptive ties to the child, can be judicially declared the father in a child support proceeding; and, conversely, a man who is or may be a child’s actual biological father will usually not be permitted to compel a paternity test or otherwise assert paternity and intercede into an existing functioning parent-child relationship when a child is born into a marriage and the husband has been held out to the community and to the child as the child’s father and has formed a parental attachment with the child. Historically, the protection of children and their de facto parents for support purposes (even when no statute directed or even authorized the court to so act) has been founded upon the principles of equity.

If the Court’s equitable powers are used to protect a child’s best interests in the situations described above, then logic would dictate that these same equitable powers should be used to protect the children in all circumstances. Due to the biological impossibility of two women or two men having a child together and the high cost of adoption, there is a whole class of children who have de facto parent-child relationships which have been established with the consent and encouragement of the biological mother or adoptive father and which are deserving of legal protection. But they are not protected.

Why? Putting aside the question of overt prejudice, it is in part because the factual and legal inquiry has been centered on creating a litmus test based upon the mechanics of conception, which is a framework modeled on the heterosexual paradigm. Who is there; what is happening at that time; what documents are signed; what formalities are followed? Of course, for non-biological fathers adjudged through equitable estoppel to be parents, the question of who is present and what actually occurred at conception is overlooked by definition. He is not the biological father so he isn’t there at conception, obviously. So why does the law persist in focusing on that with regard to solemnizing the children brought into same-sex relationships when the “mechanics of conception” are so clearly very different for them? It is hard not to conclude that it is because of lingering assumptions and prejudices against the parents based upon their sexual orientation. We submit that such a focus is, sorry for the pun, “ill conceived” and dis-serves the many New York children of same-sex relationships.

New York’s highest court, the Court of Appeals, favors a “bright-line” rule, which (when interpreting the Domestic Relations Law section which authorizes a “parent” to initiate proceedings for custody and access) narrowly defines the word “parent” as those with a biological connection to a child or the means and ability to formally adopt the child. In other words, the courthouse doors are closed to everyone else, no matter the circumstances, even the circumstance when the mother actively created the parent-child relationship and led the child, the other parent and the entire community to believe they were a family. Equity provides no protection to these important relationships.

These children, who had no role in how they were brought into the world and who love and depend upon both of their mothers or both of their fathers for their physical and emotional development and well-being, just as the children of heterosexual relationships love and depend upon their parents, have been unfairly denied the protection of New York’s courts.

New York is in the minority, lagging behind Arizona, Arkansas, California, Colorado, Delaware, Florida, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Washington, West Virginia and Wisconsin. These other States allow individuals who can prove that they have an established parent-child relationship which was fostered and encouraged by the biological or adoptive parent to then also prove that it would be in the child’s best interest to share custody of and access to the child.

Since the enactment of the Marriage Equality Act in New York, children of same-sex married couples should have the benefit of the presumption of legitimacy if born during the marriage (but not before). Prior to New York legalizing same-sex marriage, New York recognized same-sex unions performed in other states and provided children of those unions with the protection of the laws of the state in which the union was formed. Children who were born before same-sex marriage became the law of the land and children with de facto parents who choose not to marry (for whatever reason) are out of luck.

However, there is the possibility of an imminent change in the law. On June 2, 2016, the Court of Appeals heard argument on companion cases. The first, Estrellita A. v. Jennifer L.D., involves a biological mother who sought and received child support from her former lesbian partner, who had acted in the role as the child’s second mother. The non-biological, non-adoptive mother was judicially declared in a “paternity” proceeding brought by the biological mother to be a “parent” responsible for the payment of child support. When she then sought custody of and access to the child, the biological mother, invoking New York’s “bright-line” rule, argued that she was not a parent because of the lack of biological or adoptive ties to the child. The lower courts both held that the biological mother could not argue to one judge that there was a parental relationship and argue the opposite to another. This is the doctrine of judicial estoppel. In less legalistic terminology, the biological mother can’t be a hypocrite. At stake is the ability of this judicially-declared “parent” who pays child support to exercise custodial rights.

The authors are pro bono co-counsel with Lambda Legal Defense and Education Fund, Inc. and Le-Gal (The LGBT Bar Association of New York) representing Brooke Barone, the non-biological, non-adoptive mother in Matter of Brooke S. B. v. Elizabeth A. C.C. The attorney for the child is the appellant. At stake is the ability of a little boy to maintain a relationship with a woman he identifies as his mother. Ms. Barone and the boy’s biological mother, Elizabeth Cleland, met in 2006, made a home together and became engaged in hopes that they would marry as soon as it became legal for them to do so. Though not legally allowed to marry, the couple wanted to start their family immediately. They agreed that Ms. Cleland would carry the child, and she became pregnant in 2008 using an anonymous donor.

When their son was born, Ms. Barone was in the delivery room and even cut the newborn’s umbilical cord. The child was given Ms. Barone’s surname. Birth announcements were placed in the local newspaper listing both parties as the parents of the child. And, the women were held out as the parents of the child at his baptism. From the start, Ms. Barone fed their son, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. Ms. Barone was at every pre-natal and post-natal medical appointment and made medical decisions for the child. The child was enrolled in day care, school and child safety programs by Ms. Cleland, who listed Ms. Barone as the child’s parent. To his doctor, his day care, the pastor who baptized him and the entire community, Ms. Barone is one of his mothers. When the couple’s relationship ended in 2010, Ms. Barone continued to parent their son, sharing parenting time and alternating holidays (including Mother’s Day) with Ms. Cleland and provided for him financially for the following three years. In 2013, Ms. Cleland abruptly cut off contact between Ms. Barone and their son and Ms. Barone filed a petition for custody and visitation. The Family Court determined that its hands were tied based on controlling Court of Appeals “bright-line” rule and dismissed Ms. Barone’s petition. The appellate court affirmed the lower court decision. After the attorney for the child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Counsel for the child and the non-biological mother were joined by many “friends of the court” in hoping to persuade the Court of Appeals to change how it defines who is a parent and allow equitable estoppel to be applied in cases in which a parental relationship has been encouraged and fostered by the biological mother, such that, years later, she cannot change her mind, deny parentage on a whim and inflict needless pain and suffering on the child, his de facto mother and extended family. The “bright-line” is a boundary line which unfairly discriminates against children of gay and lesbian families. It is time that the Courts of this State protect the children of these relationships and their de facto parents. We proudly and hopefully look forward to being able to say that we participated in bringing about this important change in the law and the extension of civil rights to the parents and children of same-sex relationships.