Who Is a Parent?

Part Two of a Two-Part Article

In last month's newsletter, we looked at two recent cases in which New York courts determined that non-biological/non-adoptive parents could or could not seek ongoing relationships with their former romantic partners' children. In one, the Appellate Division, Second Department, concluded that a woman could seek to prove that her former same-sex partner should help support the child the petitioner conceived through artificial insemination, allegedly because the respondent had assured the petitioner that she would help to raise the child. Matter of H.M. v. E.T., — N.Y.S.2d —-, 2010 WL 3023919 (2d Dept, 8/3/10) (Fisher, J.P., Covello, Angiolillo, Balkin and Chambers, J.J.). In the other, Supreme Court, Orange County, denied a man's request to be declared the father of children that his former girlfriend adopted during their relationship, saying he was a “legal stranger” to the children without standing to petition for paternity. Matter of P. v. B., NYLJ 1202464236647, (Sup. Ct., Orange Cty. 7/28/10) (Kiedaisch, J.).

The question that arises when looking at these two outcomes is, in which situations will a “virtual parent” be treated as a legal parent?

Competing Interests

The questions of custody, visitation and child support are, absent a countervailing law, generally decided in New York on the basis of the best interests of the child. These could include not only the child's interest in financial support, but also his or her interest in maintaining connections to loved ones.

At the same time, courts are mindful of parents' constitutional right to raise their children as they see fit; this includes the right to decide with whom those children will associate. This judicial deference to a legal parent's wishes is prudent, of course, as allowing just anyone who has become emotionally attached to a child to seek custody or visitation could become a very slippery slope. Without some guarantees of parental autonomy, parents would have to be constantly vigilant, keeping at arm's length any unrelated adults with whom their children associated.

Add into this mix those third parties who are not related to the child but who have had some substantial emotional or financial connection to him or her. They may be involuntarily pushed out of the life of a child they love, or they may be forced to help raise a child that they never considered theirs. Now, the situation can become very murky, and litigation outcomes can end up all over the board.

Recent Decisions

H.M. v. E.T. and P. v. B., combined with the cases the courts cited to in those decisions, would appear to show that biological and adoptive parents have a very large say in whether a virtual parent may be treated as a true parent. If the legal parent wants that person's involvement (in the form of child support), then it may be granted. If he or she does not want the other person's involvement (in the form of custody and visitation rights), then the virtual parent's wish to remain in the child's life will be denied. This is the “bright-line rule” taken from the Court of Appeals' decision in Debra H. that the court referred to in H.M. v. E.T.

Perhaps, however, that “line” is not as “bright” as it might have seemed to the H.M. v. E.T. court. On the same day that the Court of Appeals rendered its decision in Debra H. (May 10, 2010), it also decided the case of Juanita A. v. Kenneth Mark N., 15 NY3d 1. (Juanita A. was published months later, however.) In Juanita A., the biological mother's desire to have the biological father pay child support was denied. There, the mother of a child who was 12 years old sought to have her daughter's biological father judicially declared as such so that she could obtain child support from him. The court held, however, that the respondent biological father was entitled to assert an equitable estoppel defense in the paternity and child support proceedings because the mother had hidden the child's true paternity not only from him, but also from the child and from the boyfriend she had held out as the child's father since before her birth. The mother had acquiesced in the development of a close father/child relationship between the child and her long-term boyfriend. The petitioner's boyfriend's name also appeared on the child's birth certificate, and he was the biological father of the child's older and younger siblings. With this set of circumstances in mind, the court found that it was not in the child's best interests to have someone besides her mother's boyfriend declared her father so late in her childhood. So the child's best interests outweighed the biological mother's wishes. The court therefore reversed the order of filiation that had declared that the biological father was the legal father of the petitioner's child.

Balancing the Various Interests

In a case like H.M. v. E.T., courts are faced at first glance with one of the easier decisions; not only will the child's best interests be promoted by providing her the opportunity to be supported by a second “parent,” but the biological parent is asking for the court's intervention. Therefore, no constitutional issues are posed with respect to the parent's right to raise her child as she chooses. However, there's that third person to deal with ' the alleged co-parent. Is an implied contract with the biological parent enough of a legal tie to the child to create rights and responsibilities?

The P. v. B. court probably would answer that question in the negative. It said courts need some legal indicia to hang their hats on in determining that a person not normally entitled to seek contact with a child should nevertheless be given the opportunity. The P. v. B. court used this as a reason to deny the virtual father's attempt to be named a parent to the children he never adopted, stating that his situation was different from that in Juanita A. because, there, the man the mother later sought to disprove as the father had at least been named on the child's birth certificate, a legal document. The letter from the school principal offered as proof in P. v. B. of an official endorsement of the father/child relationship did not rise to this level of authority.

How, then, can we explain the outcome in H.M. v. E.T.? Unlike in the cases cited by the Second Department to explain its decision, the respondent who allegedly made the promise to help raise the child was not married to the petitioner at any time. She also was not biologically related to the child and had not adopted the child. Neither, of course, was she listed on the infant's birth certificate as the father. Where was the indication of a legal relationship between the respondent and the child that could make the virtual parent subject to a demand for child support?

P. v. B. was decided in Orange County, which is within the Second Appellate Department, where the appeal of H.M. v. E.T. was heard. If the P. v. B. case were presented under the implied contract/equitable estoppel theory, should the petition be dismissed? After all, the petitioner there alleged that his girlfriend had assured him that he would be part of the children's lives, and that he could have his name added to the adoption papers at a later date. He allegedly invested years of his life in raising them. Based on the fact that he brought the paternity action, it can be implied that the mother's failure to carry through with her alleged promises injured him by taking away the family he thought he was part of. The loss is emotional, but it is nevertheless arguably as important as the loss engendered by a former partner's failure to come through with promised financial support for a child. In each case, broken promises ' coupled with the other party's reliance on the promise, to his or her detriment ' have been alleged.

Harm to the Children

Each of these cases also involves the possibility of harm to the children, and New York's courts are supposed to favor decisions that will serve their best interests. The Second Department stated as much in H.M. v. E.T. when it explained that it made its decision, in part, because the financial involvement of the non-biological/non-adoptive “parent” would benefit the child. The court noted that in previous cases, it had found that the application of the doctrine of equitable estoppel “would be appropriate, if determined to be in the best interests of the child, even under circumstances in which the child's 'true paternity [was] not in issue'” (quoting Matter of Charles v. Charles 296, AD2d 547, 549). As anyone who has ever dealt with family matters knows, financial support is not the only thing that advances the best interests of children. A child's sense of security is fostered by stable relationships with family members. When an unrelated adult acts as a parent, forming a parent-and-child type of emotional bond, the child will most certainly be harmed if that adult is forcibly pushed out of her life.

Conclusion

In Juanita A., the case in which the mother tried to obtain child support from a biological father although she had long treated another as the child's father, the Court of Appeals indicated that the best interests of the child could trump her legal parent's choice of how to raise her, stating: “Provided it is used to protect the best interests of the child, equitable estoppel may be used in the offensive posture to enforce parental rights or in the defensive posture to prevent rights from being enforced.” Thus, New York's highest court has held that there may be room for judicial discretion in cases involving the rights and responsibilities of virtual parents, to be applied on a case-by-case basis.

This leaves parents and the “significant others” who help them raise their children ' as well as the children themselves ' in a less-than-certain state. Which non-parents may claim or disclaim parental rights and responsibilities? Which parents may compel another to help raise a non-related child? Although some “rules” seem to have been developed in recent years, much in the evolving case law leaves room for argument on all sides. Perhaps this state of affairs is for the best; as with child custody and support issues between biological or adoptive parents, it may be best to consider each child's best interests, in each individual case.

Part Two of a Two-Part Article

In last month's newsletter, we looked at two recent cases in which New York courts determined that non-biological/non-adoptive parents could or could not seek ongoing relationships with their former romantic partners' children. In one, the Appellate Division, Second Department, concluded that a woman could seek to prove that her former same-sex partner should help support the child the petitioner conceived through artificial insemination, allegedly because the respondent had assured the petitioner that she would help to raise the child. Matter of H.M. v. E.T., — N.Y.S.2d —-, 2010 WL 3023919 (2d Dept, 8/3/10) (Fisher, J.P., Covello, Angiolillo, Balkin and Chambers, J.J.). In the other, Supreme Court, Orange County, denied a man's request to be declared the father of children that his former girlfriend adopted during their relationship, saying he was a “legal stranger” to the children without standing to petition for paternity. Matter of P. v. B., NYLJ 1202464236647, (Sup. Ct., Orange Cty. 7/28/10) (Kiedaisch, J.).

The question that arises when looking at these two outcomes is, in which situations will a “virtual parent” be treated as a legal parent?

Competing Interests

The questions of custody, visitation and child support are, absent a countervailing law, generally decided in New York on the basis of the best interests of the child. These could include not only the child's interest in financial support, but also his or her interest in maintaining connections to loved ones.

At the same time, courts are mindful of parents' constitutional right to raise their children as they see fit; this includes the right to decide with whom those children will associate. This judicial deference to a legal parent's wishes is prudent, of course, as allowing just anyone who has become emotionally attached to a child to seek custody or visitation could become a very slippery slope. Without some guarantees of parental autonomy, parents would have to be constantly vigilant, keeping at arm's length any unrelated adults with whom their children associated.

Add into this mix those third parties who are not related to the child but who have had some substantial emotional or financial connection to him or her. They may be involuntarily pushed out of the life of a child they love, or they may be forced to help raise a child that they never considered theirs. Now, the situation can become very murky, and litigation outcomes can end up all over the board.

Recent Decisions

H.M. v. E.T. and P. v. B., combined with the cases the courts cited to in those decisions, would appear to show that biological and adoptive parents have a very large say in whether a virtual parent may be treated as a true parent. If the legal parent wants that person's involvement (in the form of child support), then it may be granted. If he or she does not want the other person's involvement (in the form of custody and visitation rights), then the virtual parent's wish to remain in the child's life will be denied. This is the “bright-line rule” taken from the Court of Appeals' decision in Debra H. that the court referred to in H.M. v. E.T.

Perhaps, however, that “line” is not as “bright” as it might have seemed to the H.M. v. E.T. court. On the same day that the Court of Appeals rendered its decision in Debra H. (May 10, 2010), it also decided the case of Juanita A. v. Kenneth Mark N. , 15 NY3d 1. ( Juanita A. was published months later, however.) In Juanita A., the biological mother's desire to have the biological father pay child support was denied. There, the mother of a child who was 12 years old sought to have her daughter's biological father judicially declared as such so that she could obtain child support from him. The court held, however, that the respondent biological father was entitled to assert an equitable estoppel defense in the paternity and child support proceedings because the mother had hidden the child's true paternity not only from him, but also from the child and from the boyfriend she had held out as the child's father since before her birth. The mother had acquiesced in the development of a close father/child relationship between the child and her long-term boyfriend. The petitioner's boyfriend's name also appeared on the child's birth certificate, and he was the biological father of the child's older and younger siblings. With this set of circumstances in mind, the court found that it was not in the child's best interests to have someone besides her mother's boyfriend declared her father so late in her childhood. So the child's best interests outweighed the biological mother's wishes. The court therefore reversed the order of filiation that had declared that the biological father was the legal father of the petitioner's child.

Balancing the Various Interests

In a case like H.M. v. E.T., courts are faced at first glance with one of the easier decisions; not only will the child's best interests be promoted by providing her the opportunity to be supported by a second “parent,” but the biological parent is asking for the court's intervention. Therefore, no constitutional issues are posed with respect to the parent's right to raise her child as she chooses. However, there's that third person to deal with ' the alleged co-parent. Is an implied contract with the biological parent enough of a legal tie to the child to create rights and responsibilities?

The P. v. B. court probably would answer that question in the negative. It said courts need some legal indicia to hang their hats on in determining that a person not normally entitled to seek contact with a child should nevertheless be given the opportunity. The P. v. B. court used this as a reason to deny the virtual father's attempt to be named a parent to the children he never adopted, stating that his situation was different from that in Juanita A. because, there, the man the mother later sought to disprove as the father had at least been named on the child's birth certificate, a legal document. The letter from the school principal offered as proof in P. v. B. of an official endorsement of the father/child relationship did not rise to this level of authority.

How, then, can we explain the outcome in H.M. v. E.T.? Unlike in the cases cited by the Second Department to explain its decision, the respondent who allegedly made the promise to help raise the child was not married to the petitioner at any time. She also was not biologically related to the child and had not adopted the child. Neither, of course, was she listed on the infant's birth certificate as the father. Where was the indication of a legal relationship between the respondent and the child that could make the virtual parent subject to a demand for child support?

P. v. B. was decided in Orange County, which is within the Second Appellate Department, where the appeal of H.M. v. E.T. was heard. If the P. v. B. case were presented under the implied contract/equitable estoppel theory, should the petition be dismissed? After all, the petitioner there alleged that his girlfriend had assured him that he would be part of the children's lives, and that he could have his name added to the adoption papers at a later date. He allegedly invested years of his life in raising them. Based on the fact that he brought the paternity action, it can be implied that the mother's failure to carry through with her alleged promises injured him by taking away the family he thought he was part of. The loss is emotional, but it is nevertheless arguably as important as the loss engendered by a former partner's failure to come through with promised financial support for a child. In each case, broken promises ' coupled with the other party's reliance on the promise, to his or her detriment ' have been alleged.

Harm to the Children

Each of these cases also involves the possibility of harm to the children, and New York's courts are supposed to favor decisions that will serve their best interests. The Second Department stated as much in H.M. v. E.T. when it explained that it made its decision, in part, because the financial involvement of the non-biological/non-adoptive “parent” would benefit the child. The court noted that in previous cases, it had found that the application of the doctrine of equitable estoppel “would be appropriate, if determined to be in the best interests of the child, even under circumstances in which the child's 'true paternity [was] not in issue'” (quoting Matter of Charles v. Charles 296, AD2d 547, 549). As anyone who has ever dealt with family matters knows, financial support is not the only thing that advances the best interests of children. A child's sense of security is fostered by stable relationships with family members. When an unrelated adult acts as a parent, forming a parent-and-child type of emotional bond, the child will most certainly be harmed if that adult is forcibly pushed out of her life.

Conclusion

In Juanita A., the case in which the mother tried to obtain child support from a biological father although she had long treated another as the child's father, the Court of Appeals indicated that the best interests of the child could trump her legal parent's choice of how to raise her, stating: “Provided it is used to protect the best interests of the child, equitable estoppel may be used in the offensive posture to enforce parental rights or in the defensive posture to prevent rights from being enforced.” Thus, New York's highest court has held that there may be room for judicial discretion in cases involving the rights and responsibilities of virtual parents, to be applied on a case-by-case basis.

This leaves parents and the “significant others” who help them raise their children ' as well as the children themselves ' in a less-than-certain state. Which non-parents may claim or disclaim parental rights and responsibilities? Which parents may compel another to help raise a non-related child? Although some “rules” seem to have been developed in recent years, much in the evolving case law leaves room for argument on all sides. Perhaps this state of affairs is for the best; as with child custody and support issues between biological or adoptive parents, it may be best to consider each child's best interests, in each individual case.