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.

Caroline Krauss-Browne and Margaret Canby

In Chapter One, we discussed the availability of single parent adoption, adoption by non-married couples, the presumption of legitimacy which is afforded to children conceived by assisted reproductive technology (ART) and borne to married heterosexual couples, and the inconsistent treatment of same-sex couples in similar circumstances.  In this chapter, we address whether a child is entitled to the security of legitimacy if the formalities required by the law conferring legitimacy are not strictly followed, how the law is evolving for same-sex spouses who conceive via ART, and how do the principles of equity impact who can become a legal parent in the context of ART and otherwise.

New York’s Domestic Relations Law (DRL) Section 73 provides that a child borne by means of artificial insemination performed by people authorized to practice medicine and with the formal, written consent of the woman and her husband and their physician “shall be deemed the legitimate, birth child” of the couple for all purposes.  In other words, in order to have both the biological parent and her spouse with no biological connection to the child presumed to be the legal parents of the child, there needs to be a doctor who performs the insemination and a notarized form signed by the doctor and both “parents” affirmatively stating that the non-biological spouse is for all purposes the other parent.

The problem with this well intentioned expansion of the legal ways to become a parent is — what happens if the formalities of clinical (and expensive) artificial insemination are not observed? What happens if the insemination was performed at home without a physician and/or without the formal, written, notarized consent of both spouses and their physician?  Without potential redress based upon more searching inquiry into the facts and circumstances surrounding the conception of a child, a single administrative oversight, nothing more than a paperwork defect, could void in one parent all rights and obligations in one fell swoop, possibly not to be discovered for many years of a functioning parent/child relationship unless and until the parents break up.

The unfairness of such a situation is glaring. Thus, an appellate court covering the greater Albany area ruled that DRL Section 73 is not intended to be the only path to legitimacy and the actions and intentions of the spouses have bearing on the outcome of legal parentage.  Therefore, a father couldn’t get out of support obligations because of a technical failure to perfectly comply with the formalities of the artificial insemination statute regarding the affidavit to be executed by the doctor and parents.

Add to that problem is how that issue is addressed in the same sex context. In 2011, the Marriage Equality Act (MEA) amended all statutes referring to husbands and wives to the extent required to make them gender neutral “spouses”.  As previously discussed, that did not stop one appellate court from discriminating against same-sex couples, rationalizing that, since it is not biologically possible for both parties in those cases to be the “birth” parents, the MEA did not change how we read and interpret DRL Section 73.  Are same-sex couples continually being denied the presumption of legitimacy despite the passage of the MEA?

As proof of the rapidly changing nature of how the New York courts are resolving these issues, since our last post, a second New York appellate court held that a child borne to a married woman is the legitimate child of both spouses irrespective of the gender of the spouses and the failure to comply with DRL Section 73 stating:  “[t]he record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California and, later, while legally married in the state.”  Seemingly straight forward, this is a radical statement given the state of the law in NY.

In that particular case, the biological mother commenced a separate legal proceeding seeking a declaration that the couple’s friend and sperm donor is the other parent of the children at issue (and not the other same-sex spouse).  She did this to position the children as already having two parents (a mother and a father) and to edge out her spouse as an unwanted interloper.  In addition to black letter law, common law and principles of equity were applied to fashion a remedy which was consistent with the parties’ intention at the time the children were conceived and born and advanced the best interests of the children; namely that the sperm donor (biological parent) was not the children’s legal parent and the biological mother’s spouse with no biological connection to the children was their legal parent.  In what seems the first such decision of its kind, the benefit to the child of continuing to be parented by its original two female parents won out over the implied policy, paramount for so long, that any chance for a child to gain a new father would prevail against and push out an existing second mother.

Are the principles of equity (fairness) applied in other situations where parentage is an issue?   Many people might be surprised to learn that men who are not the biological parent of a child can be “estopped” or precluded from legally repudiating paternity after a de facto parent-child relationship has been established.  Courts can and do direct non-biological non-adoptive adults who have assumed a parental role to pay child support, even if the parent-child relationship falters or when the biological father becomes known.  This is because, as a matter of public policy, it is in a child’s best interest to have the support of two parents.

That same “father”, who has no biological or adoptive ties to the child but who has been judicially declared the father in a child support proceeding initiated by the mother, has the right to assert claims of custody of and access to the child.  Interference with the parent-child bond is viewed as antithetical to the child’s best interests and, as a result, that non-biological, non-adoptive, judge-made father’s relationship with his child is deserving of legal protection.

Conversely, because a child born to a married woman (either the “old fashioned” way or by way of ART) is legally presumed to be the legitimate child of the husband and wife, when the husband has assumed the role of the child’s father, the husband has been held out to the community as the child’s father and the child believes that the husband is his or her father and has formed a parental attachment to him, another man who is or may be the actual biological father will usually not be permitted to compel a paternity test or otherwise assert paternity and intercede into the existing functioning parent-child relationship, thus, the “interloper father” is denied custodial and visitation rights.  The same principal drives this policy, to wit:  Interference with the child’s bond to the man he or she believes is his or her father and the peace and sanctity of the existing family is viewed as antithetical to the child’s best interests and deserving of legal protection.

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.  Equitable estoppel – the power to “estop” a mother or father from asserting a legal right that he or she otherwise technically has but should not be allowed to assert because of the harm it would work on others — prevents non-biological parents from disavowing paternity and the responsibilities and benefits that come with it.  A bedrock of sound jurisprudence, estoppel is based upon principals of honesty and fair dealing and the prevention of fraud and injustice.

If the Court’s equitable powers are used to protect a child’s best interests in the situations described above, involving men who have de facto parent-child relationships with children to whom they have no biological or adoptive tie, 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 and 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.  The answer to that question has historically been negative.  How is the law evolving?  We are on the cusp of what we hope and expect to be major changes in the law, which will be discussed in detail in our next chapter.

Caroline Krauss-Browne and Margaret Canby

Who is a parent? Who is not a parent? How do biology, marital status, assisted reproductive technologies (“ART”), availability of formal legal adoption, and sexual orientation figure into the calculus? Can the deliberate action of one parent create a second functional or de facto parent-child relationship in the absence of biological and adoptive ties? Should it? To what extent are the “rights” of biological parents given priority over children’s best interests when determining who will be called a child’s parent? This series of blog posts will summarize the current state of the law and the changes that are presently being urged before the New York courts when weighing whether to recognize parental rights to children who come into adult relationships in ways outside the traditional paths to parenthood.

We have entered a new age in which medical technology and expansive adoption rules have broadened the avenues in New York to becoming a parent beyond the traditional two: the biological “old fashioned” way by two opposite-sex parties who are married to each other or not, and the cumbersome, expensive, and deliberate adoption process by two opposite-sex married persons. In what is certainly a surprise to many people, listing a person’s name on a birth certificate as a parent does not, in and of itself, confer parental status. Problems and inconsistencies arise, especially when applying the existing rules, developed over years by fits and starts, to the new factual and legal landscape related to same-sex couples and their families.

When a child is born to a heterosexual couple as a result of sexual relations, if the heterosexual couple is married, the presumption of legitimacy applies to such child, and no further legal action needs to be taken for both parties to be presumed to have a biological relationship to the child and have equal parental status. If the adults are not married, a paternity case can be filed to establish that the male is the biological father of the child in question and parental rights and obligations, whether voluntarily assumed or not, ensue. Interesting wrinkles and variations upon this rule will be addressed in detail in a future post.

As ART evolved, providing couples the opportunity to have children when one or both of them suffer a biological impediment to doing so the “old fashioned” way, the assumptions about biological parentage conferred by marriage became more complicated. These complexities grew as we entered the age of recognizing the equal rights of same-sex couples to marry and raise families.

In some ways, the New York laws and the cases that interpret them that recognized legal parental status in a changing factual landscape, have been progressive in conferring a status with many rights and obligations and, in other ways, New York has lagged behind the changing times.

For example, New York’s adoption rules now allow for single individuals to adopt, for non-married couples to adopt (both opposite-sex and same-sex), for people who are not in a romantic relationship or shared household to adopt, and for a second person to adopt the biological or previously adopted child of the first person. When the adults seeking to establish a parenting relationship are aligned in their mutual interest to undertake the parenting relationship together, the courts have been liberal in granting the formation of that status, reflecting the public policy that creating more opportunities for legal parent-child relationships to form rather than less generates significantly better outcomes for children.

New York statutes specifically addressing the issue of ART in the conception of a child recognize that it is unfair to children conceived by ART within a marriage to require that the non-biological parent surmount extra legal hurdles for parental status to be created, such as requiring a second parent adoption before the obviously non-biological parent can assert parental status or have such status imposed upon him. The rule now provides for a document to be executed at the initiation of ART procedures, which provides that children born by ART into marriages are the legitimate “birth child” of the “husband” and “wife” for all purposes. But what happens when you have a situation with two “wives” or two “husbands”?

This rule was upheld by a Kings County (Brooklyn) Surrogates Court when a same-sex couple sought a second parent adoption for a child born to one of them during their marriage.  The court found a second adoption unnecessary given New York’s new marriage equality statute, because the presumption of legitimacy applied despite the fact that the statutory language refers to the child as the “legitimate child of both birth parents.” But the presumption of legitimacy has not been consistently applied to same-sex couples. For example, inexplicably and without a full recitation of the relevant facts, a New York appellate court recently held that the presumption of legitimacy did not apply to a same-sex couple for a child born during the marriage, stating that the presumption of legitimacy is only a rebuttable biological presumption of parenthood in the parent who did not give birth—which cannot be the case in a same-sex relationship—and not a legal presumption of parenthood. In seemingly cutting out all same-sex marriages from the presumption of legitimacy that has always attached to children born into marriages, this ruling begs the question of whether or not the old concern about the stigma of “illegitimacy” has been held to be less traumatic for a child, by at least some courts, than the “stigma” of having same-sex parents.

So what happens when the ART form isn’t properly signed or is somehow overlooked?  What if the use of donor genetic material to conceive is informal (via at home artificial insemination) or, as in the case of same sex-couples, a direct biological relationship to both parents, even when married, cannot (it seems) ever be assumed? What if the couple, heterosexual or otherwise, is not married? Can a different standard be applied to opposite-sex parties than to same-sex parties? Can such a different standard possibly pass constitutional muster? Stay tuned as these questions, which are at the very forefront of the emerging law on de facto parenting presently being litigated in New York’s top court, will be discussed in our next chapter.