Rockland County Family Court Judge Rachel E. Tanguay, ruling on a previously unresolved question under New York law, decided that when a lesbian couple had children together and raised them together as a family for several years before splitting up, the co-parent was entitled to have her parental status recognized for all purposes through what is known as an Order of Filiation.
Judge Tanguay’s ruling last month in A.F. v. K.H. takes New York law one step further than the Court of Appeals’ landmark 2016 decision in Brooke S.B. v. Elizabeth A.C.C., which had overruled a 25-year-old precedent to hold that a co-parent can seek custody and visitation in such a situation.
A.F. and K.H. became registered domestic partners in 2005, according to the findings of a Family Court attorney referee at an earlier stage of this case, and they decided to have children, with K.H. becoming pregnant through donor insemination with sperm from an anonymous donor. The women had two children whom they raised together until separating in July 2011, ironically right around the time that the New York Marriage Equality Act went into effect.
There was no dispute that they considered each other to be “parents” of both children. In fact, when the children were born they were given A.F.’s surname.
But after the break-up, K.H. resisted A.F.’s assertion of parental rights and even took the step of getting the court to change the children’s surname to hers.
A.F. sued to preserve her contact with the children.
At that time, the binding precedent in New York courts was Alison D. v. Virginia M., a Court of Appeals ruling from 1991, which had been reaffirmed by the court in 2010, under which a person in the position of A.F. was deemed to be a “legal stranger” to the children, without standing under the Domestic Relations Law to seek custody or visitation.
As a result, A.F.’s lawsuit was unsuccessful, with the Appellate Division affirming the trial court’s dismissal of her case in 2014.
From that point forward, A.F. had no contact with the children until her new lawsuit got underway.
After the Court of Appeals decided Brooke S.B., overruling Alison D. and providing that under certain circumstances a lesbian co-parent would have standing to seek custody and/ or visitation with children she had been raising with her former partner, A.F. decided to try again.
In her new custody case, she also sought a formal Order of Filiation from the court that would confer on her full parental rights for all legal purposes, not just custody and visitation. This ultimately was the sticking point in the case, because after it was clea
r that the Family Court was going to apply Brooke S.B. to allow A.F. to revive her custody and visitation claims, K.H. agreed to a negotiated settlement about custody and visitation.
That left the Order of Filiation as the only issue for Judge Tanguay to decide.
K.H. and the attorney appointed by the court to represent the children’s interest continued to strongly oppose such an order.
Under an Order of Filiation, A.F. would have equal rights to participate in all significant parenting decisions, extending to such matters as education, medical care, inheritance, and other circumstances where parental status may be significant, and she could also object to any adoption of the children by a new partner or spouse of K.H.
In Brooke S.B., the court carefully acknowledged “limited circumstances in which such a person has standing as a ‘parent.’”
“Specifically,” wrote Tanguay, “the Court rejected ‘a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital ‘parents’ who are raising children.”
Instead, in a cautious way, the Court of Appeals last year narrowed its decision to the precise facts of the case before it, and wrote, “We stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation.”
Seizing upon this language, K.H. argued that the Court of Appeals had not ruled that a person in A.F.’s position was entitled to be recognized as a parent for all purposes.
“At first blush,” wrote Tanguay, “it would appear that the Court of Appeals in Brooke was attempting to limit its holding to conferring standing to a party only.”
But, the judge pointed out, the court reached this point by “broadening the definition of ‘parent’ to include a non-biological, non-legal ‘parent’ under certain circumstances.”
And the court got there by tracing the evolution of case law and statutes, including, of course, the 2011 Marriage Equality Act.
Indeed, the Brooke S.B. decision came more than a year after the US Supreme Court ruled that same-sex couples have a constitutional right to marry, in an opinion that stressed the importance to children being raised by same-sex couples of having two legally recognized parents.
In Brooke, Judge Eugene Pigott, concurring with the court, wrote, “Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation.”
So the issue in the Rockland County case case was whether to bring that one step further to cover same-sex couples who had their children and split up before marriage equality was available in New York. Although A.F. and K.H. were registered domestic partners, that status under local law did not confer any legal parental rights, which are a matter of state law.
Ultimately, Tanguay concluded, the lack of a modern statutory scheme that would explicitly handle this situation is “manifestly unfair not only to the non-biological parent, but to the children who deserve to have a two-parent family when same was intended at their conception.”
The best interests of the children should be the overriding factor, experts on family law agree.
“The majority in Brooke concluded its opinion by stating, ‘We will no longer engage in the deft legal maneuvering necessary to read fairness into an overly-restrictive definition of parent that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles,’” wrote Tanguay, who continued, “This court will not allow legal maneuvering that permits A.F. to be a ‘parent’ for purposes of custody, visitation, and child support, but without more. It is simply inequitable, and not consistent with prevailing common law as set for herein.”
She granted A.F.’s petition and decreed that the court “issue an Order of Filiation for each child listing A.F. as their legal parent forthwith.”
A.F. is represented by Sherri Donovan of New York City. K.H. is represented by Adrienne J. Orbach of White Plains. Shiza Khan of New City served as appointed attorney for the children.
K.H. was given 30 days to take an appeal from this decision, which was issued on May 25. An appeal would not delay A.F.’s contact with the children, since the parties had have come to agree on the visitation question, so the only issue on appeal would be whether A.F. will be accorded all parental rights through the Order of Filiation.