In the Matter of Joseph O. (Anonymous), respondent,
Danielle B. (Anonymous), et al., appellants. (Docket Nos. V-2875-16, P-2877-16)
- May 26, 2017
Kurland Group, New York, NY (Yetta G. Kurland, Erica T.
Kagan, and LGBT Bar Association of Greater NY [Brett M.
Figlewski], of counsel), for appellants.
N. Weber, Cornwall, NY, for respondent.
M. Enderley, Poughkeepsie, NY, attorney for the child.
Seyfarth Shaw LLP, New York, NY (Cameron Smith, Nila Merola,
and Rumbold & Seidelman, LLP [Denise Seidelman and Nina
Rumbold], of counsel), for amicus curiae American Academy of
Assisted Reproductive Technology Attorneys.
REINALDO E. RIVERA, J.P. L. PRISCILLA HALL BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by permission, from an order of the Family Court, Orange
County (Victoria B. Campbell, J.), entered January 9, 2017.
The order denied the motion of Danielle B. and Joynell B. to
dismiss Joseph O.'s petition for visitation with the
subject child and his petition to establish his paternity of
that the order is reversed, on the law and the facts, without
costs or disbursements, and the motion of Danielle B. and
Joynell B. to dismiss Joseph O.'s petition for visitation
with the subject child and his petition to establish his
paternity of the child is granted.
respondents, Danielle B. and Joynell B., were married in
Connecticut on July 21, 2009. They decided to have a child
and met the petitioner, Joseph O., through the Internet in
their search for a sperm donor. On February 21, 2011, the
parties entered into a "Three-Party Donor Contract,
'' wherein they agreed, among other things, that the
petitioner would provide the respondents with a semen sample
for the purposes of artificial insemination, that he would
have no parental rights or responsibilities in relation to
any resulting children, and that he would not request or
compel any guardianship or custody of, or visitation with,
any child born from the artificial insemination procedure. On
April 28, 2012, Danielle gave birth to the subject child. The
birth certificate identifies Danielle and Joynell as the
child's parents, and the child was given Joynell's
petitioner commenced related paternity and visitation
proceedings in September 2015, but the proceedings were
dismissed without prejudice for failure to join Joynell, a
necessary party. In June 2016, the petitioner commenced these
proceedings seeking visitation with the child and to be
declared the father of the child. The paternity petition
acknowledged that the child was born through artificial
insemination, and that the birth mother was married to
Joynell at the time of conception, but it also alleged that
the petitioner was the father of the child. In his visitation
petition, the petitioner identified himself as the
child's biological father and alleged that visitation
with him would be in the child's best interests because
he had an established relationship with the child since her
respondents moved to dismiss the petitions, inter alia, on
the grounds of the presumption of legitimacy under the common
law and pursuant to Domestic Relations Law § 73, and the
doctrine of equitable estoppel. In support of their motion,
the respondents asserted that the petitioner, who had waited
nearly 3% years after the child's birth to initiate a
paternity proceeding, had no meaningful relationship with the
child. They further asserted that the child had formed a
parental bond and relationship with each of the respondents,
with whom the child had lived since her birth.
opposition to the motion, the petitioner submitted an
affidavit in which he stated that he had visited the child at
the respondents' home three to four times each year
throughout the first three years of her life, and had
celebrated birthdays and holidays with the child and her
family, sending gifts when he could not be present. The
petitioner further stated that he was not trying to replace
either of the respondents as the child's parent, and that
he "would simply like to continue [his] relationship
with [the child]." He contended that it would be in the
child's best interests to continue to have him in her
attorney for the child supported the respondents' motion
to dismiss, affirming that the child recognized only the
respondents as her parents. In an affidavit in reply, the
respondents asserted that they had maintained only limited
communication with the petitioner, that the petitioner had
seen the child "only sporadically, " and that the
child did ...