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In re K.G.

Supreme Court of New York, First Department

June 26, 2018

In re K.G., Petitioner-Appellant-Respondent,
C.H., Respondent-Respondent-Appellant. The Lesbian and Gay Law Association Foundation of Greater New York, Amicus Curiae.

         Petitioner appeals from an order and judgment (one paper) of the Supreme Court, New York County (Frank P. Nervo, J.), entered April 13, 2017, which, after a trial, denied the petition for joint custody of the parties' child and dismissed the proceeding for lack of standing, and denied respondent's motion to the extent it sought costs and sanctions under 22 NYCRR 130-1.1.

          Kaplan & Company LLP, New York (Roberta A. Kaplan and John C. Quinn of counsel), Morrison Cohen LLP, New York (Danielle C. Lesser and Andrew P. Merten of counsel), and Chemtob Moss & Forman, LLP, New York (Nancy Chemtob and Jeremy J. Bethel of counsel), for appellant-respondent.

          Cohen Rabin Stine Schumann LLP, New York (Bonnie E. Rabin, Gretchen Beall Schumann, Tim James and Lindsay Pfeffer of counsel), for respondent-appellant.

          Latham & Watkins LLP, New York (Virginia F. Tent, Matthew J. Pickel, Iris H. Xie and Naseem Faqihi Alawadhi of counsel), for amicus curiae.

          Peter Tom, J.P. Dianne T. Renwick Judith J. Gische Jeffrey K. Oing Anil C. Singh, JJ.

          GISCHE JUDGE

         In this action, petitioner (KG) claims that she is a parent with standing to seek custody of and visitation with A., the adopted child of respondent (CH), her now ex-partner. KG is not biologically related to A., who was born in Ethiopia, nor did she second adopt the child. KG's claim of parental standing is predicated upon the recent landmark Court of Appeals decision in Matter of Brooke S.B. v Elizabeth A.C.C. (28 N.Y.3d 1');">28 N.Y.3d 1 [2016]), which expansively defines who is a "parent" under Domestic Relations Law § 70. On appeal, KG primarily claims that in 2007, before A. was identified and offered to CH for adoption, the parties had an agreement to adopt and raise a child together. CH does not deny that the parties had an agreement in 2007, but claims that the 2007 agreement terminated when the parties' romantic relationship ended in 2009, before A. was first identified and offered for adoption to CH in March 2011. KG alternatively claims on appeal that based upon the relationship between her and A., which developed after he came to New York, this Court should find she has standing as a parent under principles of equitable estoppel. As a further alternative, KG claims that the matter should be remanded because the trial court improperly truncated the record on equitable estoppel.

         After a 36-day trial, Supreme Court held that notwithstanding the parties' agreement to adopt and raise a child together, KG did not remain committed to their agreement, which terminated before the adoption agency matched A. with CH. The court denied KG standing to proceed and dismissed the petition for custody and visitation. The court did not substantively address any issue of equitable estoppel. Mid-trial, after KG's case closed, the court ruled that it was only considering KG's claims of standing based upon whether the parties had a viable plan to adopt and raise a child together.

         All of the legal issues raised on this appeal have Brooke as their underpinning. In Brooke, decided only days before this proceeding was commenced, the Court of Appeals, is an opinion written by Judge Sheila Abdus-Salaam, overruled Matter of Alison D. v Virginia M. (77 N.Y.2d 651');">77 N.Y.2d 651 [1991]) and abrogated Debra H. v Janice R. (14 N.Y.3d 576 [2010], cert denied 562 U.S. 1136');">562 U.S. 1136 [2011]), its earlier precedents, thereby greatly expanding the definition of who can obtain status as a parent and have standing to seek custody and visitation of a child. Although pursuant to Domestic Relations Law § 70(a), "either parent" may petition the court for custody of a child, the statute does not define that term. In Alison D., decided before Brooke, the Court of Appeals, over a prescient dissent by Chief Judge Judith Kaye, declined to construe the term parent to include nonbiological, nonadoptive parents. The effect of these earlier precedents was that only biological or adoptive parents had standing to seek custody and visitation. In deciding Brooke, the Court recognized that its narrow interpretation of "parent" under Alison D. had produced inequitable results, especially for children being raised by same sex couples. In departing from its earlier precedents, the Court of Appeals expansively defined Domestic Relations Law § 70 in Brooke, permitting nonbiological, nonadoptive parents to achieve standing to petition for custody and visitation (Brooke at 26-27). The decision was celebrated for its ground breaking recognition of the rights of members of nontraditional families (e.g. Alan Feur, New York Court Expands Definition of Parenthood, NY Times, August 31, 2016 at A17).

         Closely hewing to the reasoning of Judge Kaye's dissent in Alison D., the Brooke Court recognized that parenthood was broader than biology or adoption, but it also held that the criteria to determine parenthood must be appropriately narrow to take into account the fundamental rights to which biological and adoptive parents are "undeniably entitled" (id. at 27). In this regard, the Court placed the burden of proving standing, by clear and convincing evidence, on the party seeking it (id. at 28). The Court also recognized that in order to prove standing under Domestic Relations Law § 70, more than just a loving relationship with the child was warranted (id at 26-28).

         Notwithstanding the stated limitations, the Brooke court recognized that there could be a variety of avenues for a movant to prove standing. It expressly rejected the premise that there is only one test that is appropriate to determine whether a former same-sex nonbiological, nonadoptive party has parental standing. In fact, in Brooke and its companion case of Matter of Estrellita A. v Jennifer L.D., the Court of Appeals recognized each petitioner's status as a parent, but did so applying two completely different tests. The Court of Appeals also left open the possibility that a third "test," involving the application of equitable principles, such as the doctrine of equitable estoppel, could be utilized to confer standing in certain circumstances.

         In Brooke, the Court of Appeals recognized that where a former same-sex partner shows by clear and convincing evidence that the parties had jointly agreed to conceive a child that one of them would bear, and also agreed to raise that child together once born, the nonbiological, nonadoptive partner has standing, as a parent, to seek custody and visitation with the child, even if the parties' relationship has ended. The Court referred to these circumstances as the parties having a preconception agreement and applied the "conception test" (id. at 27-28). In Estrellita, however, the Court resolved the question of standing differently, applying the doctrine of judicial estoppel (id. at 29). In Estrellita, the child's biological parent (Jennifer L.D.) had previously petitioned Family Court for an order requiring Estrellita A., the nonbiological, nonadoptive partner to pay child support. Jennifer L.D.'s support petition was granted and she was successful in obtaining child support from Estrellita A. Subsequently, Estrellita A. sought custody and visitation with the child, but Jennifer L.D. denied that Estrellita A. had standing as a parent. The Court of Appeals determined that Jennifer L.D. had asserted an inconsistent position in the support action, because Jennifer L.D. had successfully obtained a judgment of support in her favor and therefore, was judicially estopped denying Estrellita A.'s status as a parent given Family Court's prior determination that Estrellita A. was in fact, a legal parent to the child (id. at 29).

         In deciding Brooke, the Court rejected calls by the amici and the parties that it should adopt only one, uniform test to determine standing as a parent. The Court observed that a different test might be applicable in circumstances where, for instance, a partner did not have any preconception agreement with the legal parent:

         "Inasmuch as the conception test applies here, we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement. We simply conclude that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Whether a partner without such an agreement can establish standing and, if so, what factors a petitioner must establish to achieve standing based on equitable estoppel are matters left for another day, upon a different record" (id. at 28).

         Although Brooke was decided in the context of children who were planned and conceived through means of artificial insemination, the Court's reasoning applies with equal force where, as here, a child is legally adopted by one partner and the other partner claims he or she is a "parent" with co-equal rights because of a preadoption agreement (see Matter of Gardiner, 69 N.Y.2d 66, 73 [1986] [addressing New York State's long-standing, unbroken and fundamental public policy to treat adoptive and biological children equally in family settings]).

         KG contends that the 2007 agreement satisfies the conception/adoption test enunciated in Brooke. She argues that the trial court was factually mistaken in holding that the 2007 plan "abated" when the parties romantic relationship ended. KG also argues that the court should never have looked at whether the 2007 plan terminated, because once the parties made their plan, legal standing was conferred on her to seek custody of or visitation with any child that CH later conceived or adopted. We do not find these arguments persuasive. As more fully discussed, there is ample support in the record for the trial court's factual conclusion that the parties' 2007 agreement to adopt and raise a child together had terminated before A. was identified by the agency and offered to CH for adoption. Nor was the trial court's consideration of whether the plan was in effect at the time the particular child in this proceeding was identified for adoption an impermissible reformulation or restriction on the plan test originally enunciated in Brooke.

         At trial, the parties stipulated that in 2007 they had an agreement to internationally adopt and raise a child together. Their plan envisioned that after CH completed an international adoption, and a child was brought to the United States, KG would second adopt that child, thereby becoming a legal parent as well. It is also undisputed that the parties' romantic relationship ended in December 2009, well before any particular child was identified by the international agency and offered to CH for adoption. The parties sharply dispute whether their agreement to jointly adopt survived the dissolution of their romantic relationship. CH contends that KG broke up with her because KG had misgivings about becoming a mother and no longer wanted to bring a child into their relationship. CH argues that the parties' conduct at the time of their breakup vitiated the 2007 pre-adoption agreement. KG contends that she remained committed to the adoption plan and continued her cooperation with it beyond the end of their romantic relationship.

         While there were conflicting facts presented at trial, those conflicts were resolved by the trial court in favor of CH's position. Facts supporting the conclusion that by the time A. was identified and adopted by CH the parties no longer had a viable agreement to adopt and raise a child together include at least the following: The parties began a romantic relationship in 2004. At some point they began talking about adopting a child. In 2007 the parties jointly purchased an apartment on Sullivan Street. A cohabitation agreement, dated May 18, 2007, set forth the partes' respective rights in the apartment, which they refer to as the "familial residence." The parties agree that the cohabitation agreement was made in contemplation of, and as a foundation for, their plan to adopt and raise a child together, even though the agreement makes no reference to their planned adoption.

         The parties thereafter took affirmative steps to effectuate their plan. By February 2009, the parties initiated their application for an international adoption. Only CH was listed on the application as the prospective adoptive parent; KG was identified as a household member. They agree that this was solely done to avoid the prevalent restrictions on same-sex international adoptions. Both parties participated in ...

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