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In re Heather NN

Supreme Court of New York, Third Department

December 26, 2019

In the Matter of Heather NN., Respondent-Appellant,
Vinnette OO., Appellant-Respondent. (And Another Related Proceeding.)

          Calendar Date: November 12, 2019

          Tully Rinckey PLLC, Vestal (Tauseef S. Ahmed of counsel), for appellant-respondent.

          Heather NN., Binghamton, respondent-appellant pro se.

          Larisa Obolensky, Delhi, attorney for the child.

          Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.

          Garry, P.J.

         Cross appeals from an order of the Family Court of Broome County (Young, J.), entered May 22, 2018, which, among other things, partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for visitation with the subject child.

         Respondent is the biological mother of a child (born in 2008) who was conceived via artificial insemination during a same-sex relationship between respondent and petitioner. Petitioner is not biologically related to the child and did not adopt her. The parties separated in 2009, approximately one year after the child's birth, and the child remained with respondent. Respondent permitted petitioner to have parenting time for approximately two years, but then terminated all visitation. Thereafter, respondent occasionally sent pictures of the child to petitioner and permitted petitioner to speak with the child on the telephone, but directed petitioner not to use her real name or tell the child who she was. The parties agree that petitioner has not been allowed any parenting time since 2010.

         In January and February 2011, petitioner sought parenting time and custody of the child; both petitions were dismissed by Family Court for lack of standing. Shortly thereafter, respondent filed a family offense petition alleging harassment and stalking, and the court issued a two-year order of protection precluding petitioner from contact with respondent or the child.

         Petitioner commenced her present proceeding in 2016 seeking joint legal custody and parenting time, following the issuance of Matter of Brooke S.B. v Elizabeth A.C.C. (28 N.Y.3d 1 [2016]). Respondent then filed another family offense petition, alleging stalking, harassment and disorderly conduct. After a trial and a Lincoln hearing, Family Court found that petitioner had standing to seek legal custody and parenting time. The court granted sole legal custody and physical placement of the child to respondent and awarded parenting time to petitioner in a graduated schedule of parenting time to begin with one hour weekly in therapeutic counseling sessions for eight weeks. Thereafter, petitioner would have two hours of parenting time each weekend, supervised by respondent or her designee, for four months, followed by four hours each weekend, supervised by respondent or her designee, for four months, and then four hours of unsupervised parenting time each weekend for three months. The order provided that the schedule of four hours of weekly unsupervised parenting time would continue after the completion of the first year, and petitioner would then be free to commence modification proceedings seeking expanded contact with no need to show a change in circumstances. The court dismissed respondent's family offense petition. These cross appeals ensued. [1] [2] "Only a 'parent' may petition for custody or visitation under Domestic Relations Law § 70, yet the statute does not define that critical term, leaving it to be defined by the courts" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d at 18). Before 2016, New York courts held that an individual who was not a child's biological parent and had not adopted the child did not fall within the statutory definition of a parent and, thus, lacked standing to seek custody or parenting time (see Debra H. v Janice R., 14 N.Y.3d 576, 597 [2010], cert denied 562 U.S. 1136 [2011]; Matter of Alison D. v Virginia M., 77 N.Y.2d 651, 656-657 [1991]). Petitioner's 2011 custody and visitation petitions were dismissed in accord with that authority. In 2016, the Court of Appeals overruled these precedents and expanded the statutory definition of a parent, holding that when a biological parent's former partner "shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d at 14; see Matter of deMarc v Goodyear, 163 A.D.3d 1430, 1431 [2018], lv dismissed 32 N.Y.3d 1184 [2019]; Matter of K.G. v C.H., 163 A.D.3d 67, 71 [2018]). Referring to this analysis as "the conception test," the Court of Appeals expressly declined to find that any single test would cover all potential circumstances and held open the possibility that parenthood could also be established by other means (Matter of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d at 27-28; see Matter of Chimienti v Perperis, 171 A.D.3d 1047, 1048-1049 [2019], lv denied 33 N.Y.3d 912 [2019]; Matter of K.G. v C.H., 163 A.D.3d at 72). Here, respondent argues that Family Court improperly applied the conception test and erred in determining that petitioner has standing.

         Petitioner and respondent met in 2004 at a counseling facility in Brooklyn where petitioner was required to undergo substance abuse counseling as a result of a 2002 criminal conviction relating to the sale of narcotics. Respondent was her counselor. [3] The parties entered into an intimate relationship and, after petitioner completed her counseling in 2005, respondent moved from Brooklyn to the City of Binghamton, Broome County to live with petitioner in a home that petitioner owned there. Petitioner admitted that she was involved in buying and selling narcotics during this period. Several months after respondent began residing with petitioner, petitioner's home was searched pursuant to a warrant and petitioner was arrested for the sale of narcotics. She was incarcerated for approximately 14 months in 2006 and 2007. The parties continued their relationship during this period. Respondent continued to reside in petitioner's home, visited petitioner regularly, and used a power of attorney to manage petitioner's business affairs, including several rental properties. Respondent wrote letters to petitioner subsequently admitted into evidence in which respondent stated her desire to marry petitioner and have children with her.

         Following petitioner's release, the parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. In testimony that Family Court found to be credible, petitioner stated that she and respondent agreed to select a sperm donor who would reflect petitioner's ethnic background. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner's credit card was used to pay the related expenses. [4] Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent's prenatal appointments, was present when the child was born, and cut the child's umbilical cord. The child was given two last names, reflecting the parties' two surnames. [5] Petitioner testified that the child was named, in part, after petitioner's mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties are listed as the child's two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner's life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child's life.

         Upon this record, we find that Family Court correctly determined that petitioner falls within the statutory definition of a parent and, thus, has standing in this proceeding. Contrary to respondent's argument, Family Court did not err in applying the conception test to determine petitioner's standing rather than a "functional" test that would have examined the relationship between petitioner and the child after the child's birth (Matter of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d at 27). The evidence fully establishes that the parties planned jointly for the child's conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Accordingly, petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child (see id. at 27-28; Matter of Frank G. v Renee P.-F., 142 A.D.3d 928, 930-931 [2016], lv dismissed 28 N.Y.3d 1');">28 N.Y.3d 1050 [2016]; compare Matter of K.G. v C.H., 163 A.D.3d at 78-79).

         Respondent next challenges Family Court's parenting time award. A child's best interests "generally lie with a healthy, meaningful relationship with both parents" (Matter of Williams v Patinka, 144 A.D.3d 1432, 1433 [2016]; accord Matter of Adam E. v Heather F., 151 A.D.3d 1212, 1214 [2017]). "The natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right... [and] the denial of those rights to a... parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child" (Matter of Ciccone v Ciccone, 74 A.D.3d 1337, 1338 [2010] [internal quotation marks, brackets and citations omitted], lv denied15 N.Y.3d 708');">15 N.Y.3d 708 [2010]). Initially, we reject respondent's contention that petitioner is a parent "only by operation of law" and, thus, is not entitled to the same parenting time rights as a biological or adoptive parent. Respondent cites no law to support this theory, and we find nothing in Domestic Relations Law § 70 or the pertinent case law suggesting that such a distinction exists. On the contrary, the Court of Appeals stated in Matter of Brooke S.B. that the issue to be decided was "who qualifies as a parent with coequal rights" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d at 26 [internal quotation marks omitted; emphasis added]; accord Matter of Paese v Paese, 175 A.D.3d 502, 504 [2019]). Thus, we will "presume[] that parental visitation is in the best interest[s] of the child ...

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