Seeking Custody or Visitation as a Non-Biological, Non-Adoptive, Same-Sex Parent in the Absence of a Pre-Conception Agreement
Seeking custody or visitation as a non-biological, non-adoptive parent can feel like an insurmountable challenge, and make you feel as if you don’t have any rights. The Appellate Division, Second Department, however, recently affirmed an order from the Family Court, Nassau County (Judge Thomas A. Rademaker) giving standing to a same-sex, non-biological and non-adoptive parent seeking custody of and visitation with her non-biological children that were born during the couples’ marriage.
In the recent case of Chimienti v Perperis, the biological mother, Perperis, gave birth to two children who were conceived via artificial insemination. The parties’ romantic relationship began in 2014, shortly before the older child was conceived and they continued their relationship as domestic partners through that child’s birth, as well as through the conception and birth of the younger child. The parties ended their relationship in early 2017, and Chimienti sought custody of and visitation with the children. Perperis contested this proceeding on the ground that Chimienti did not have standing as she was not the biological parent, had not adopted the children, and there was no pre-conception agreement between the parties giving her any rights to the children. After a Hearing in the Family Court, Judge Rademaker issued an order, dated September 27, 2017, determining that Chimienti established standing, via equitable estoppel, to seek custody of or visitation with the children. Perperis appealed the determination that Chimienti had standing to seek custody of or visitation with the children.
The Appellate Division, Second Department, agreed with Judge Rademaker’s determination to apply an equitable estoppel analysis to decide whether Chimienti had standing in this case. The Court referred to the Court of Appeals’ determination in the Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1), where the Court declined to declare that there was only one test for determining whether a same-sex, non-biological, non-adoptive parent has standing to seek custody of and visitation with the biological children of the party’s former partner, and recognized that another test may apply to situations where a couple has not entered into a preconception agreement. The Court of Appeals expressly left open the issue of whether, in the absence of a preconception agreement, a former same-sex, non-biological, non-adoptive partner of a biological parent could establish standing based upon equitable estoppel.
Equitable estoppel is regularly raised and imposed in Family Court proceedings to protect a child’s established relationship with another who has assumed the parental role, meaning that when one parent allowed the other to parent and establish a relationship with their child, they cannot terminate the relationship after the fact. Courts are more inclined to impose equitable estoppel to protect the status interests of a child in an already that recognized relationship (Jean Maby H. v joseph H., 246 AD2d 282, 287, quoting Matter of Baby Boy C., 84 NY2d91, 102n). For example, equitable estoppel has applied to preclude a biological mother from cutting off the custody and/or visitation rights of her former husband, a non-biological parent whom the subject child perceived to be her father (see Jean Maby H. v Joseph H., 246 AD2d 282, 287). Likewise, it has also been used to equitably estop a biological father from challenging the paternity of a non-biological stepfather (see Matter of John Robert P. v Vito C., 23 AD3d 659, 662). Regardless of whether it is used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interest of the child.
In Chimienti v Perperis, the Appellate Division held that under the circumstances of that case, the appropriate analysis to decide whether Chimienti had standing to seek custody or and visitation with the children is to apply an equitable estoppel analysis. It was established that from the time of each child’s birth, Chimienti carried out the responsibilities as a parent to the children and that Perperis allowed these relationships to develop and foster. Chimienti also participated in the prenatal care and the births of the children, including remaining in the hospital with Perperis after each delivery, participated in the raising of the children as her children, and was held out by Perperis to others as the co-parent of the children. Also, the parties lived together with the children as a family during their relationship and the older child regards Chimienti as her mother, calling her “mommy” and calling Perperis “momma”. Even after the relationship ended, for about four months Perperis allowed Chimienti significant access to the children. Based on this and the additional evidence, the court determined that on the basis of equitable estoppel, Chimienti had standing to seek custody or visitation with the children.
If you are non-biological, or non-adoptive parent seeking child custody or visitation rights, you need a competent and knowledgeable Family Law Attorney who can demonstrate that placement with you is in that child’s bests interests. Rachel Weisman has over twenty-seven (27) years of experience representing clients throughout the New York metropolitan area. Ms. Weisman will evaluate the circumstances of your case and be your advocate and guide through the child custody process. She is assertive, compassionate and personable, and is well regarded in the legal community. You can trust Ms. Weisman to give your family the care and attention that they deserve, because you and your child should receive nothing less.
Based on the case Chimienti v Perperis.
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