In the Matter of Joseph O. (Anonymous), respondent,
Danielle B. (Anonymous), et al., appellants.
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 3½ 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
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 not recognize the petitioner as "anything
other than an acquaintance of the family."
order entered January 9, 2017, the Family Court denied the
motion. It found that the petitioner had set forth a prima
facie showing that he was the child's biological father,
and therefore the burden shifted to the respondents to show
that it was not in the child's best interests for either
a paternity test to be ordered or an order of filiation to be
issued in the petitioner's favor. The court concluded
that but for the respondents permitting contact between the
child and the petitioner, they would have been entitled to
the presumption of legitimacy. However, since they permitted
the contact, the court found that there were triable issues
of fact as to whether the petitioner was equitably estopped
from asserting paternity. The respondents appeal.
Family Court properly concluded that the irrebuttable
presumption of parentage afforded by Domestic Relations Law
§ 73 is not applicable to the circumstances of this
case, since the artificial insemination done here was not
performed by a person duly authorized to practice medicine
(see Domestic Relations Law § 73).
"Although our Legislature has provided an avenue to
avoid factual disputes essentially by creating an
irrebuttable presumption of legitimacy where the
prerequisites of the statute are met" (Laura WW. v
Peter WW.,51 A.D.3d 211, 217), those prerequisites were
not met here. Nonetheless, Domestic Relations Law § 73
was not intended to be the exclusive means to establish the
parentage of a child born through artificial insemination of
a donor (see Matter of Christopher YY. v Jessica
ZZ., _____ A.D.3d _____, 2018 NY Slip Op 00495, *10 [3d
Dept 2018]; Matter of Kelly S. v Farah M., 139
A.D.3d 90, 102-104; Laura WW. v Peter WW., 51 A.D.3d
at 214-215). Thus, the respondents' failure to comply
with Domestic Relations Law ...