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H.M. v. E.T.

May 26, 2009

IN THE MATTER OF H.M. (ANONYMOUS), RESPONDENT,
v.
E.T. (ANONYMOUS), APPELLANT.



APPEAL, in a proceeding pursuant to Family Court Act article 5-B, inter alia, to establish a support order, from an order of the Family Court (William P. Warren, J.), entered September 11, 2007, in Rockland County, which, among other things, granted the petitioner's objections to an order of the same court (Rachelle C. Kaufman, S.M.), dated March 7, 2007, which, upon, in effect, granting E.T.'s motion to dismiss the petition, dismissed the petition.

The opinion of the court was delivered by: Covello, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, RUTH C. BALKIN and CHERYL E. CHAMBERS, JJ.

(Docket No. U-110-07)

OPINION & ORDER

In this Family Court proceeding, a child's birth mother seeks to have another female, lacking legal ties to her, and lacking biological and legal ties to the child, adjudicated a parent of the child and required to pay child support. The question presented for our consideration is whether the Family Court has subject matter jurisdiction to entertain such an application. Because the application is not of a type that the Family Court, a court of limited jurisdiction, has been specifically authorized to entertain, we answer in the negative.

On or about October 23, 2006, H.M., an Ontario resident, and the birth mother of a 12-year-old child, filed a "Support Application" with a Canadian agency, seeking to have E.T., a Rockland County resident, and H.M.'s former same-sex partner, adjudicated a parent of the child. H.M. also sought an award of child support retroactive to the date of the child's birth.

In support of her application, H.M. alleged that in August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating. H.M. alleged that the parties then agreed that she would attempt to become impregnated via artificial insemination, and that after a child was born, they would parent that child together. H.M. alleged that pursuant to this agreement, and with E.T.'s assistance and encouragement, she became impregnated by sperm from an anonymous sperm donor. In September 1994, H.M. gave birth to the subject child. H.M. alleged that over the next few months, E.T. acted as a parent to the child by nurturing and caring for him. However, H.M. alleged that in January 1995, E.T. ended the parties' relationship. H.M., who subsequently relocated with the child to Canada, alleged that after the relationship ended, she made numerous requests of E.T. for child support, all of which were refused.

Approximately two months after H.M. filed her support application, the Canadian agency transmitted it to the New York State Interstate Central Registry's Division of Child Support Enforcement. About two months later, the application, deemed a "Paternity/Support Petition" pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B [hereinafter UIFSA]), was forwarded to the Family Court, Rockland County, for action. The Family Court then issued a summons to E.T., notifying her of the petition, and informing her that the matter would be heard before a Support Magistrate.

On March 6, 2007, E.T. appeared with counsel before the Support Magistrate. H.M., proceeding pro se, appeared by telephone.

The Support Magistrate indicated that H.M.'s petition had to be determined pursuant to New York law. The Support Magistrate also indicated that under the "unusual" circumstances presented, the application would be treated as a "paternity petitio[n]." At that point, E.T.'s counsel made an oral motion to dismiss the petition, arguing that it would be impossible for the Family Court to determine that E.T., a female, was "the father" of the subject child.

After entertaining argument from H.M., the Support Magistrate advised the parties that the motion would be granted. In support of that determination, the Support Magistrate found that under the present law of this State, there was no basis upon which the Family Court could adjudicate E.T. a parent of the subject child and require her to pay child support. In this regard, the Support Magistrate noted that E.T. was not the birth mother of the child or an adoptive parent of the child, never executed an official acknowledgment of parentage of the child, and was not in a legally recognized same-sex marriage or civil union with H.M. when she gave birth to the child. Indeed, the Support Magistrate, pointing out that the Family Court is a court of law with limited subject matter jurisdiction, found no provision in Family Court Act article 5, or in any other article of the Family Court Act for that matter, applicable to a controversy between a birth mother and another female concerning the other female's parentage of a child. Finally, the Support Magistrate, deeming all of H.M.'s factual allegations to be true, and observing that equitable considerations might suggest that E.T. be adjudicated a parent of the child and required to pay child support, noted that the Family Court cannot grant equitable relief.

In an order dated March 7, 2007, the Support Magistrate, upon, in effect, granting E.T.'s motion to dismiss, dismissed the petition "due to there being no basis, under existing New York State [l]aw, under which an Order of Filiation could be issued against [E.T.]." Subsequently, H.M. submitted certain written objections to the Support Magistrate's order, to which E.T. submitted a written response.

In an order entered September 11, 2007, the Family Court granted H.M.'s objections to the Support Magistrate's order. In so doing, the Family Court observed that E.T. was neither a biological nor an adoptive parent of the subject child. However, the Family Court cited certain cases where courts "held individuals responsible for the support of a child even though they were not related to the child by biology or adoption." The Family Court observed that in those cases, the courts applied the doctrine of equitable estoppel which, the Family Court noted, will be applied in order to protect the best interests of a child born out-of-wedlock. Thus, the Family Court concluded that "a paternity proceeding [can] proceed against a same sex partner if circumstances are established justifying the [doctrine's] application." Then, the Family Court, noting that the subject child was born as a result of E.T.'s "promises," concluded that H.M.'s allegations, if true, could support a finding that E.T. "should be estopped [from denying] her role as a person responsible to provide support for [that] child." Accordingly, the Family Court directed a hearing to determine whether E.T. "should be equitably estopped [from denying] her responsibility to provide support to the subject child."*fn1

E.T. appeals from the order of the Family Court granting H.M.'s objections to the Support Magistrate's order. Although the order of the Family Court is not an order of disposition (see Matter of Kraft v Porter, 300 AD2d 660, 661) and, hence, not appealable as of right, under the circumstances, we treat the notice of appeal as an application for leave to appeal, and grant leave (see Family Ct Act § 1112). Furthermore, because the Support Magistrate properly granted E.T.'s motion to dismiss the petition on the ground that the Family Court lacked subject matter jurisdiction to entertain H.M.'s application (see CPLR 3211[a][2]; see also Family Ct Act § 165[a]), we reverse the Family court's order and reinstate the order of the Support Magistrate dismissing the petition.

Subject matter jurisdiction concerns a court's competence to entertain a particular kind of application (see Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718; Lacks v Lacks, 41 NY2d 71, 75; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166). A court's power to entertain a particular kind of application is conferred by constitution or statute alone (see Matter of Fry v Village of Tarrytown, 89 NY2d at 718).

The Supreme Court, a court of general jurisdiction in law and equity (see NY Const, art VI, § 7), is competent to entertain all applications unless the court's subject matter jurisdiction to entertain a particular application has been specifically proscribed (see Sohn v Calderon, 78 NY2d 755, 766; Thrasher v United States Liab. Ins. Co., 19 NY2d at 166). In contrast, the Family Court is a court of limited subject matter jurisdiction (see NY Const, art VI, § 13; Family Ct Act § 115). Unable to exercise powers beyond those granted to it by the precise language of the Constitution or a statute (see Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366; Matter of Walker v Walker, 86 NY2d 624, 629; Matter of Pearson v Pearson, 69 NY2d 919, 921; Matter of Silver v Silver, 36 NY2d 324, 326), the Family Court is only competent to entertain such applications as the Constitution or a statute specifically enumerates (see Matter of Roy v Roy, 109 AD2d 150, 151; Matter of Mouscardy v Mouscardy, 63 AD2d 973, 974-975).

In the instant Family Court proceeding, H.M., never married to or in a civil union with E.T., seeks to have E.T., a woman having no biological or legal connection to the subject child, adjudicated a parent of that child and required to pay child support. An objection concerning subject matter jurisdiction having been made, we must examine the language of the Constitution and the Family Court Act to determine whether the Family Court is competent to entertain an application of this nature.

The Family Court received H.M.'s support application pursuant to UIFSA (see Family Ct Act § 580-305). UIFSA authorizes a proceeding for a determination of "parentage" (Family Ct Act § 580-301[b][6]; § 580-701), relief that H.M. sought. UIFSA provides that in deciding such a proceeding, the Family Court is required to apply the procedural and substantive law generally applicable to a "similar" proceeding originating in this State, and may only exercise whatever "powers" and provide whatever "remedies" that are "available" in such a proceeding (Family Ct Act § 580-303[1]; see Family Ct Act § 580-701[b]).

The only proceeding in this State "similar" to a proceeding for a determination of "parentage" is a proceeding pursuant to Family Court Act article 5. Yet, as the Support Magistrate recognized, Family Court Act article 5, entitled "paternity proceedings," only provides a vehicle for resolving controversies concerning a male's fatherhood of a child.

At common law, the father of a child born out-of-wedlock had no duty to support that child (see Feyler v Mortimer, 299 NY 309, 313; Commissioner of Pub. Welfare v Koehler, 284 NY 260, 266; People ex rel. Lawton v Snell, 216 NY 527, 532). Family Court Act article 5, providing for paternity proceedings, represents the most recent legislative effort to mitigate the harsh effects of that rule (cf. Matter of L. Pamela P. v Frank S., 88 AD2d 865, affd 59 NY2d 1; Feyler v Mortimer, 299 NY at 313). Consistent with that goal, the plain language of numerous provisions of Family Court Act article 5 clearly and unambiguously indicates that a proceeding thereunder will only involve a controversy concerning a male's fatherhood of a child.

To illustrate, Family Court Act § 511 provides that the Family Court has "exclusive original jurisdiction" in proceedings to establish "paternity" (see also NY Const, art VI, § 13[b][5]; Domestic Relations Law § 111-b[3]), a term defined as the "state or condition of being a father" (Black's Law Dictionary 1163 [8th ed 2004]). In addition, Family Court Act § 523 provides that in a proceeding pursuant to Family Court Act article 5, the petition must allege that the person named as the respondent, or the petitioner if the petitioner is a person alleging to be "the child's father," is "the father of the child" (see also Family Ct Act § 512[d]). Furthermore, Family Court Act § 532(a) authorizes the Family Court, in determining a proceeding pursuant to Family Court Act article 5, to order a genetic marker or DNA test to aid in the determination of whether "the alleged father" is or is not "the father of the child." Finally, Family Court Act § 541 provides that a proceeding pursuant to Family Court Act article 5 will culminate in an order dismissing the petition if the Family ...


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