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In re A.F.

Family Court, Rockland County

May 25, 2017

In the Matter of A.F., Petitioner,
K.H., Respondent.

          Sherri Donovan, Esq. - Attorney for Petitioner A.F. Sherri Donovan & Associates, PC

          Adrienne J. Orbach, Esq. - Attorney for Respondent K.H. Law Offices of Adrienne J. Orbach, PLLC

          Shiza Khan, Esq. - Attorney for the Children Khan Family Law


          RACHEL E. TANGUAY, J.


         These parties are not before this Family Court for the first time. On September 24, 2013, The Rockland County Family Court (Dean Richardson-Mendelson, Court Attorney Referee) issued a decision and order granting a motion to dismiss the Petitioner A.F.'s previously filed custody petition. Notably, that decision and order predated the Court of Appeals decision in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 61 N.E.3d 488, 39 N.Y.S.2d 89 (2016), which this Court has concluded changed the legal landscape as applied to the facts in this particular case. In 2013, Referee Richardson-Mendelson made the following factual findings relative to the parties, factual findings that are relevant to the instant case:

The parties became registered domestic partners on August 25, 2005. Sometime thereafter, the parties decided to have children together, and they mutually agreed that K.H. would conceive by artificial insemination by an unknown sperm donor.... The parties remained as an intact couple until their separation in July of 2011...
The fact that the parties considered each other "parents" of the child, and held each other out to the world as parents of the child, prior to this litigation is undisputed. For example, in K.H.'s child support petition [which was subsequently withdrawn], she gave numerous examples of how the parties jointly held themselves out to the "parents" of the children. K.H. acknowledged that A.F. was in the delivery room for the births of both children, and both children have A.F.'s last name. The parties have celebrated the birthdays of the children with both of their respective families and friends, and the children refer to A.F.'s parents as Grandma and Pop Pop and A.F.'s brother as their uncle. Each party traditionally claimed one child on their tax return as a dependent, A.F. provided health insurance for the children, and, after the parties (sic) separation, A.F. paid for ½ of private school tuition, ½ of the babysitting fees and ½ of all extracurricular activities.

         Decision and Order dated September 24, 2013 at pages 2-4 (brackets and ellipses added).

         Ultimately, Referee Richardson-Mendelson dismissed the Petitioner's prior custody petition, finding that under prevailing law at that time, A.F. had not established a prima facie case for extraordinary circumstances under the seminal case for when a non-parent can seek standing to obtain custody or visitation with a child, Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2d 277, 387 N.Y.S.2d 821 (1976). Moreover, the prevailing case law in 2013 relative to the facts in this case, as held by the Court of Appeals in Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 (1991), and re-affirmed once again in Debra H. V. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d 184 (2010) specifically precluded a non-biological, non-adoptive person who acted as a parent towards a child from having standing to seek custody or visitation with that child absent a valid marriage between the parties, which was not available in New York in 1991 or 2010, or absent an adoption of the child by the non-biological party.

         In this particular case, the referee's decision was affirmed by the Appellate Division, Second Department. Matter of A.F. v. K.H., 121 A.D.3d 683, 993 N.Y.S.2d 370 (2d Dept. 2014). It is undisputed that following the dismissal of A.F.'s custody petition in 2013, there was no contact at all between the children and A.F. In fact, K.H. obtained an order permitting her to legally change the surname of the two children at issue to her surname without the knowledge A.F.. Once the Court of Appeals issued the decision in Brooke, supra, A.F. re-filed her custody petition with this Court, as well as sought an order of parentage, arguing that the holding in Brooke automatically conferred standing on her to seek custody and/or visitation with the two subject children. With the request for an order of parentage in addition to an order of custody/visitation, the referee was no longer able to hear the matter and the case was transferred to a Family Court Judge. At the first appearance on this case, K.H. objected to A.F.'s standing and moved to dismiss her application, which the Attorney for the Children (AFC), who also represented the children in the prior litigation, supported. The Court issues a decision on January 3, 2017 on the motion to dismiss essentially concluding it was not bound by stare decisis, meaning the Appellate Division, Second Department's holding prior holding in this case at 121 A.D.3d 683. This court specifically stated how the Court of Appeals in Brooke also grappled with the issue of whether it was bound by stare decisis given its prior holding in Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 (1991). However, the Court of Appeals, with the late Justice Abdus-Salaam taking great care to reason how stare decisis should be "generally" bind the Court to prior holdings in "future cases", was instructive to this court. Brooke, 28 N.Y.3d at 23. The Court of Appeals had stated, "But in the rarest of cases, we may overrule a prior decision if an extraordinary combination of factors undermines the reasoning and practical viability of our prior decision." Id. This court noted how the Court of Appeals, the final arbiter for the interpretation of the law in our state, issuing decisions with far-reaching affects on countless people, felt compelled to overrule itself and not be bound by stare decisis in a case with a set of facts very similar to the case at bar. Given the gravity of that choice, this trial court, holding the power and responsibility to hear testimony and evidence which will determine the lives and future relationships children have with people in their life, did not find it proper, given the holding in Brooke, to dismiss Petitioner's petition on the basis of stare decisis.

         Moreover, K.H. had also sought dismissal of A.F.'s most recent application on the basis that she was precluded by the doctrine of res judicata. This court held that custody matters are generally not subject to that doctrine. See Theresa O. v. Arthur P., 11 Misc.3d 736, 809 N.Y.S.2d 439 (Fam. Ct. Ulster Co. 2006); Frost v. Wisneiwski, 126 A.D.3d 1305, 6 N.Y.S.2d 809 (4th Dept. 2015)(holding that the trial court erred in dismissing a paternity petition on the basis of res judicata, because "it is the child's best interests which are of paramount concern" (internal quotation marks and citations omitted)). Custody and parenting time are issues always subject to modification and adjustment as the needs of children and blended families evolve. Certainly, litigants are not permitted to adjust or modify orders without demonstrating the threshold requirement of a change of circumstances since entry of the last order. However, while there is not a factual change in circumstances here, per se, that would form the proper basis for modification of an existing order, there is certainly a change in circumstances [1], to wit: the Court of Appeals has recently determined that there is now a pathway for non-biological, non-legal parents to achieve standing in a custody and visitation case. This court noted in its decision on the motion to dismiss that this was a significant change in legal circumstances since this court was asked to determine whether Petitioner had standing in 2013. The Court of Appeals noted that the effects Alison D., supra, had upon certain families and especially children were almost chilling. "In years that followed, lower courts applying Alison D. were forced to... permanently sever strongly formed bonds between children and adults with whom they have parental relationship. By limiting their opportunity to maintain bonds that may be crucial to their development, the rule of Alison D. has fallen hardest on children." Brooke, 28 N.Y.3d at 24 (internal quotation marks, citation and brackets omitted). Thus, this Court did not dismiss A.F.'s petition on the basis of res judicata.

         The parties attended a conference with this court on January 11, 2017, where the court wanted to confirm whether the facts relating to the conception and the intention of the parties to raise the children jointly was at issue, even though the court had made prior findings in 2013. The parties conceded that the facts were uncontroverted; this court concluded that the facts conferred standing on A.F. to seek custody and visitation pursuant to Brooke, supra. At that conference, the court scheduled a best interests hearing for May 5, 2017. The parties arrived at court on May 5, 2017 with a fully executed stipulation resolving custody and access to the children. [2] However, the parties could not agree on whether A.F. was entitled to an order of filiation/parentage, with A.F. arguing primarily that this court should grant such an order upon the finding that she had standing as a "parent" under D.R.L. § 70 to seek custody and visitation. K.H. and the AFC argued against this court issuing such an order, averring that the paternity statues do not permit a same-sex individual to obtain an order of filiation, and that the holding in Brooke, supra, limits this court to conferring standing to a non-biological, non-legal parent to seek custody and visitation, but not all of the rights, obligations and privileges that are associated with a being a legal parent of a child.

         Therefore, under current law, this court must determine whether it is empowered to issue an Order of Filiation/Parentage in favor of a non-biological, non-adoptive parent whom it has determined has standing to seek custody and visitation of children conceived by the biological parent pursuant to the holding in. It is clear that the Court of Appeals expanded the definition of "parent" beyond its prior definition of biological and legal parents, as it established that "[D.R.L.] § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation...." Brooke, 28 N.Y.3d at 27 (brackets added). However, the Court grappled with determining the "limited circumstances in which such a person has standing as a `parent' under [D.R.L.] § 70." Id. (citations omitted). Specifically, 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." Id. Instead, the Court opted to deal with the narrowly tailored factual circumstances of the case before it, where a same-sex couple had intended to conceive and raise a child together, absent any legal or biological ties between one "parent" and the child. Moreover, the Court in Brooke wrote, "[W]e stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation...." Id. at 28 (brackets added).At first blush, it would appear that the Court of Appeals in Brooke was attempting to limit its holding to conferring standing to a party only, as argued by Respondent and the AFC. However, it is extremely noteworthy that the Court of Appeals chose to confer standing by broadening the definition of "parent" to include a non-biological, non-legal "parent" under certain circumstances. Moreover, the Court engaged in a thorough analysis of the evolution of case law and statutes, including the Marriage Equality Act, ironically having been enacted the same month and year when the parties in this case separated, July 2011. J. Pigott, who concurred with the majority opinion correctly stated that "[s]ame-sex couples are now afforded the ...

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