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Debra H. v. Janice R.

May 4, 2010


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

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

Respondent Janice R. is the biological mother of M.R., a six-year old boy conceived through artificial insemination and born in December 2003. Janice R. and petitioner Debra H. met in 2002 and entered into a civil union in the State of Vermont in November 2003, the month before M.R.'s birth. Janice R. repeatedly rebuffed Debra H.'s requests to become M.R.'s second parent by means of adoption.

After the relationship between Janice R. and Debra H. soured and they separated in the spring of 2006, Janice R. allowed Debra H. to have supervised visits with M.R. each week on Sunday, Wednesday and Friday for specified periods of time, as well as daily contact by telephone. In the spring of 2008, however, Janice R. began scaling back the visits. By early May 2008, she had cut off all communication between Debra H. and M.R.

In mid-May 2008, Debra H. brought this proceeding against Janice R. in Supreme Court by order to show cause. She sought joint legal and physical custody of M.R., restoration of access and decisionmaking authority with respect to his upbringing, and appointment of an attorney for the child.*fn1 After a hearing on May 21, 2008, the judge signed the order to show cause, which set a briefing schedule, and the parties, at his instance, entered into a "so-ordered" stipulation that reinstated the three-day-a-week visitation schedule previously followed. The stipulation required M.R.'s nanny or a mutually agreed-upon third party to accompany M.R. when he visited Debra H.

As Supreme Court later put it, "few facts . . . [were] undisputed" at the hearings and in the parties' submissions, which "differ[ed] substantially with respect to the nature and extent of [Debra H.'s] relationship with [Janice R.] and, more significantly, with M.R." (2008 NY Misc LEXIS 6367, *1, *4-5 [Sup Ct, NY County 2008]). At the hearing on July 10, 2008, Debra H. acknowledged our decision in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]), which held that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent, but contended that Matter of Shondel J. v Mark D. (7 NY3d 320 [2006]) endorsed a nonbiological or nonadoptive parent's right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D. In support of this interpretation of our precedents, Debra H. emphasized that Shondel J. cited Jean Maby H. v Joseph H. (246 AD2d 282 [2d Dept 1998]), a divorce proceeding in which the husband successfully invoked equitable estoppel to seek custody and visitation with a child born to the wife prior to the marriage, whom he neither fathered nor adopted. Debra H. also urged Supreme Court to consider the effect of the parties' civil union, and alluded to the Vermont Supreme Court's decision in Miller-Jenkins v Miller-Jenkins (180 Vt 441, 912 A2d 951 [2006], cert denied 550 US 918 [2007]).

In opposition to Debra H.'s application, Janice R. stressed that she had always spurned Debra H.'s entreaties to permit a second-parent adoption. She argued that Alison D., which interpreted Domestic Relations Law § 70, was not eroded or overruled by Shondel J., a case involving a filiation determination; pointed out that the Legislature did not amend section 70 after Alison D. was handed down, or elsewhere enact any provision broadening standing to seek visitation or custody; and observed that Janice R. conceived M.R. prior to entering into the civil union with Debra H. in Vermont. At the hearing's conclusion, Supreme Court reserved decision and continued visitation in a further "so-ordered" stipulation.

In a decision and order filed on October 9, 2008, Supreme Court ruled in Debra H.'s favor. The judge reasoned that "it [was] inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support obligations, but preclude a nonbiological parent from invoking [equitable estoppel] against the biological parent in order to maintain an established relationship with the child" since, in either event, "the court's primary concern should be furthering the best interests of the child" (2008 NY Misc LEXIS 6367, *25).

Supreme Court concluded that the facts alleged by Debra H., if true, "establish[ed] a prima facie basis for invoking the doctrine of equitable estoppel" (id., at *25-26). In this regard, the judge considered the parties' civil union to be "a significant, though not necessarily a determinative, factor in [Debra H.'s] estoppel argument" because, under Vermont law, "parties to a civil union are given the same benefits, protections and responsibilities . . . as are granted to those in a marriage," which "includes the assumption that the birth of a child during a couple's legal union is 'extremely persuasive evidence of joint parentage'" (id., at *26, quoting Miller-Jenkins, 180 Vt at 466, 912 A2d at 971).

Because of the many contested facts, however, Supreme Court ordered another hearing to resolve whether Debra H. stood in loco parentis to M.R., as she asserted, and therefore possessed standing to seek visitation and custody. The judge noted that, in the event Debra H. succeeded in proving the facts that she alleged, a further hearing would then be required to assess whether it was in M.R.'s best interest to award Debra H. visitation and/or custodial rights. Supreme Court continued the existing "so-ordered" stipulation permitting supervised visitation, and also granted Debra H.'s request for appointment of an attorney to represent the child.

Janice R. appealed, and obtained a stay of the equitable-estoppel hearing ordered by Supreme Court, pending disposition of the appeal. On April 9, 2009, the Appellate Division unanimously reversed on the law, vacated Supreme Court's order, denied the petition, and dismissed the proceeding. The court acknowledged that while the "record indicate[d] that [Debra H.] served as a loving and caring parental figure during the first 21/2 years of [M.R.'s] life, she never legally adopted [him]" and, in accordance with Alison D., "a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law § 70" (61 AD3d 460, 461 [1st Dept 2009]). The Appellate Division commented that, to the extent that denial of any right to equitable estoppel in this case might be considered inconsistent with Shondel J. and Jean Maby H., its own "reading of precedent [was] such that the doctrine of equitable estoppel may not be invoked where a party lacks standing to assert at least a right to visitation" (id.).

Both Debra H. and the attorney for the child asked the Appellate Division for a stay of enforcement so as to allow visitation to continue until further appellate proceedings were completed, and for leave to appeal to us. Pending resolution of those motions, a Justice of the Appellate Division granted Debra H.'s emergency application for an interim stay and allowed Sunday visitation. After the Appellate Division denied the motions on June 25, 2009, Debra H. and the attorney for the child separately asked us for leave to appeal and sought another stay.

On July 13, 2009, a Judge of this Court signed a "so-ordered" stipulation continuing one-day-a-week visitation. And on September 1, 2009, we granted Debra H. and the attorney for the child permission to appeal (13 NY3d 702 [2009]). We also approved their request for a further stay to the extent of reinstating and permitting enforcement of so much of Supreme Court's order as allowed Debra H. to have Sunday visitation with M.R. (13 NY3d 753 [2009]). We now reaffirm our holding in Alison D., but reverse the Appellate Division's order in this case for reasons of comity in light of Debra H.'s status as M.R.'s parent under Vermont law.


Domestic Relations Law § 70 (a) provides that "[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will promote its welfare and happiness, and make award accordingly" (emphasis added).

In Alison D., we decided that section 70 does not confer standing on a biological stranger to seek visitation with a child in the custody of a fit parent. Debra H. urges us to exercise what she characterizes as longstanding common law and equitable powers to recognize the parentage of a nonbiological, nonadoptive individual on a theory of equitable estoppel and in the child's best interest. As a consequence, she asks us to revisit and either distinguish or overrule Alison D., a case that closely resembles this one factually.

Alison D., the former romantic partner of Virginia M., petitioned for visitation with Virginia M.'s child under Domestic Relations Law § 70. According to Alison D., she and Virginia M. established a relationship, began living together, and decided to have a child whom Virginia M. would conceive through artificial insemination. They agreed to share all parenting responsibilities, and continued to do so for the first two years of the child's life. When the child was about 21/2 years old, however, the parties ended their relationship and Alison D. moved out of the family home. The parties adhered to a visitation schedule for a time, but Virginia M. at first restricted and eventually stopped Alison D.'s contact with the child.

When the case reached us, we rejected Alison D.'s argument that she "acted as a 'de facto' parent or that she should be viewed as a parent 'by estoppel'" (Alison D., 77 NY2d at 656 [emphasis added]). As we explained,

"[t]raditionally, in this State it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child, even in situations where the non-parent has exercised some control over the child with the parents' consent . . . To allow the courts to award visitation -- a limited form of custody -- to a third person would necessarily impair the parents' right to custody and control" (id. at 656-657).

Because Alison D. "concede[d] that [Virginia M. was] a fit parent," she had "no right to petition the court to displace the choice made by the fit parent in deciding what is in the child's best interests" (id. at 657).

Citing Domestic Relations Law §§ 71 and 72 (permitting siblings and grandparents respectively to petition for visitation), we emphasized that "[w]here the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation and it gave the courts the power to determine whether an award of visitation would be in the child's best interests" (id.). Thus, we refused to "read the term parent in section 70 to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child's parents and who wish to continue visitation with the child" (id.).

In support of our decision in Alison D., we cited Matter of Bennett v Jeffreys (40 NY2d 543 [1976]) and Matter of Ronald FF. v Cindy GG. (70 NY2d 141 [1987]), cases which set forth bedrock principles of family law. In Bennett, we held that the State "may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" (40 NY2d at 544). Where extraordinary circumstances are present, the court determines custody based on the child's best interest. Concomitantly, in Ronald FF., we held that "[v]isitation rights may not be granted on the authority of the . . . Bennett . . . extraordinary circumstances rule, to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother" (70 NY2d at 142); and further noted that the mother possessed a fundamental right "to choose those with whom her child associates," which the State may not "interfere with . . . unless it shows some compelling State purpose which furthers the child's best interests" (id. at 144-145).

In Matter of Jacob (86 NY2d 651 [1995]), decided four years after Alison D., we construed section 110 of the Domestic Relations Law, New York's adoption statute, to permit "the unmarried partner of a child's biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, [to] become the child's second parent by means of adoption" (id. at 656 [emphasis added]). We stressed that permitting such second-parent adoptions "allows . . . children to achieve a measure ...

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