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In re Joseph O. (Anonymous)

Supreme Court of New York, Second Department

February 21, 2018

In the Matter of Joseph O. (Anonymous), respondent,
v.
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.

          Paul N. Weber, Cornwall, NY, for respondent.

          Kelley 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

         Appeal, 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 the child.

         ORDERED 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.

         The 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 surname.

         The 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 birth.

         The 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 birth.

         In 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 life.

         The 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."

         In an 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.

         The 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[1]). "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 ...


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