An 'Extra Parent': NY Law Can Accommodate That Situation

The formerly married couple, identified as Dawn M. and Michael M. (Dawn and Michael), were wed in July 1994. They wanted a family, and tried to conceive for some time, but they were unsuccessful. This led them to seek fertility assistance. The plaintiff was artificially inseminated with her husband's sperm, and conception occurred, but the child was miscarried after 10 weeks in the womb. Because there is no other discussion of further fertility treatments in the record, it appears that this was the couple's only medically assisted attempt to have their own child.

In April 2001, the wife met a woman identified in court papers as Audria G (Audria). Audria and Dawn became good friends, and Audria and her boyfriend soon moved into the apartment downstairs from Dawn and Michael. When the boyfriend moved out, Audria moved upstairs with the married couple. By 2004, according to the court, “Audria, plaintiff and defendant began to consider themselves a 'family' and decided to have a child together.” The three of them went to the same fertility doctor who had performed Dawn and Michael's previous artificial insemination procedure, to have Audria similarly implanted with Michael's sperm. The doctor, however, refused to perform the procedure because of the relational circumstances of the proposed biological parents. This being the case, the parties all decided that Michael and Audria should have unprotected sex in order that she might be impregnated. According to Judge Leis, “The credible evidence establishes that it was agreed, before a child was conceived, that plaintiff, Audria and defendant would all raise the child together as parents.”

A child was conceived. During Audria's pregnancy, Dawn accompanied her to most of her medical appointments. Dawn's medical insurance was used to cover the costs of Audria's prenatal visits and the delivery. Dawn was also present at the delivery of the child, on Jan. 25, 2007.

For 18 months following J.M.'s birth, the three adults continued to live in the same home with him. Both women acted as J.M.'s mother, alternating turns taking care of him and taking him to doctors' appointments. However, things began to sour in Dawn and Michael's marriage. Thus, in October 2008, Dawn, Audria and the baby moved out of the marital home and took up residence together elsewhere. Michael commenced a custody case against Audria, but these biological parents settled, agreeing that Audria would retain physical custody of J.M., but that Michael would enjoy liberal visitation rights. This arrangement has not, apparently, been problematic for any of the parties.

In 2011, Dawn sued Michael for divorce. During those proceedings, she testified credibly that after the divorce action was commenced, Michael stopped considering her a mother of J.M. She continues to live with Audria and with J.M., but here sought an order from the court declaring she is entitled to continued shared custody and to visitation. Absent this, Dawn explained, she felt at the mercy of Audria and Michael should they, for any reason, decide to cut off her access to J.M. in future. (Audria continues to live with Dawn and J.M. 10 years after the child's birth, and expressed her strong support for the court's granting Dawn custody and visitation rights in this action.)

A Three-Parent Solution?

Michael moved for summary judgment, contending that precedent set in Alison D. v Virginia M., 77 NY2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991), required the court to deny Dawn visitation and custody rights because — not being J.M.'s biological or adoptive parent — she lacked standing to seek such relief. He argued that Dawn had never acted as a parent, and so should not be granted parental rights. Dawn and the attorney for the child averred that Michael should be estopped from making this claim, for a number of reasons. First, Michael had agreed, even before the child's conception, that he, Dawn and Audria would serve as parents together, in spite of Dawn's lack of any biological connection. He then allowed Dawn to act as one of J.M.'s mothers by permitting her to care for the child just as he and Audria did. When J.M. underwent an operation at the age of two, Michael even told hospital staff that Dawn was one of J.M.'s mothers so that both women could be present in the recovery room. Although Michael testified that J.M. referred to Dawn by her name and not as “mommy,” Audria and Dawn testified to the contrary.

Judge Leis credited their testimony over Michael's, and noted in a footnote that, under Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488), where a 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 parent has standing to seek visitation and custody under DRL 70. “This case represents the logical next step,” wrote the court.

Having concluded that Dawn should be treated as a parent, the court moved on to a best interests inquiry. New York Domestic Relations Law (DRL) § 70, says that a parent may seek custody from the court based solely upon what is in the child's best interest and what will promote the child's welfare and happiness. DRL § 240 also requires courts in divorce proceedings to “enter a custody order having regard to the circumstances of the case and of the respective parties and to the best interests of the child.”

Concerning J.M.'s best interests, Judge Leis stated that Dawn's love for the boy was evident: “Indeed, during her testimony, plaintiff beamed whenever she spoke of J.M.” In addition, in his in-camera interview with the boy, now 10 years old, the child made it clear that he makes no distinction between Dawn and Audria based on biology. In fact, according to the judge, J.M. left “no doubt that [he] considers both plaintiff and Audria to be equal 'mommies' and that he would be devastated if he were not able to see plaintiff. The interview with J.M. also clearly shows that he enjoys his present living situation and would not want it altered in any way.” The child also seemed to love his father and was unaware that his father was seeking to deny Dawn parental rights.

With these facts and J.M.'s best interests in mind, the court considered whether shared custody would be the best option for this family, discussing the teachings of New York's high court, the Court of Appeals, in its decision in Braiman v. Braiman, 44 NY2d 584, 589, 378 N.E.2d 1019, 407 N.Y.S.2d 449 (1978). The Braiman court stated that “children are entitled to the love, companionship, and concern of both parents… [and] a joint award affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child,” but cautioned that, if parents cannot get along, joint custody orders may lead to stress and chaos. “That is not the case here,” stated Judge Leis, because the evidence established that, for the whole of J.M.'s life, Dawn had already been acting as a de-facto custodian parent, sharing in his care and in making parental-type decisions, and yet no major acrimony had arisen among the three adults.

“Plaintiff and defendant have raised J.M. in a loving environment as evidenced by the fact that he does not know that the defendant opposes custody and court-ordered visitation with plaintiff,” stated the judge. He also noted that the three adults “clearly do not present as so embattled and embittered that they will not work together to put J.M.'s needs first. J.M. needs a continuing relationship with the plaintiff as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”

Finding that all three adults would continue to be capable of cooperating and putting J.M.'s needs above theirs, and that having Dawn as a permanent presence in his life would be in J.M.'s best interest, the court awarded joint custody to Dawn. “Such joint legal custody will actually be a tri-custodial arrangement as Audria and defendant already share joint legal custody,” wrote Judge Leis. “As it appears from Audria's testimony that she whole-heartedly supports such an arrangement, this Court finds no issue with regards to Audria's rights in granting this relief. Indeed, tri-custody is the logical evolution of the Court of Appeals' decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL § 10-a[,] which permits same-sex couples to marry in New York.”

Although Dawn asked the court for an order granting her one weekend of visitation per month — which she suggested could be carved out of Michael's already-designated three weekends per month — the court was not convinced. After all, Dawn was already living with J.M. and Audria on a full-time basis, so Dawn saw the boy nearly every day, while taking away one of Michael's three weekend visits might harm his relationship with J.M. Instead, recognizing Dawn's right and need to spend time alone with J.M., the court ordered dinnertime one-on-one visitation between Dawn and the boy on Wednesday evenings, along with one week-long school recess visitation each year and two weeks each summer.

Conclusion

Different though the parental arrangement was for the family involved in Dawn M. v. Michael M., it is not beyond the pale. As social norms become less stringent, families are increasingly coming into being in unconventional ways. The law is adjusting accordingly, as evidenced by this decision and others, so that society and the courts can continue to promote the best interests of children — even those whose families are not of the cookie-cutter variety.

*****
Janice G. Inman is Editor-in-Chief of The Matrimonial Strategist.

In today's world of shifting family roles and scientific changes in even how a child comes into the world, the question of who is a “parent” can get murky. We have seen surrogate mothers seek custody of children they carried for couples who provided their own egg and sperm; same-sex co-parents fight for visitation rights with children with whom they have no biological or adoptive connection; and grandparents argue that they are the “real” parent to a child whose biological parent might have been mentally or physically absent for much of a child's life. Now comes a new twist: the question of custody of a child born after three people decided they wanted to have a child. The case, Dawn M. v. Michael M., 2017 N.Y. Misc. LEXIS 807, *; 2017 NY Slip Op 27073 (Sup. Ct., Suffolk Cty., 3/8/17), presented a unique question to a New York court, but one that just might be repeated — in some form or another — in future cases.

In Dawn M. v. Michael M., Suffolk County, New York, Supreme Court Judge H. Patrick Leis III, granted shared custody of a child — identified in this action as J.M. — to a woman not related to him by blood, even though he already had two biological parents who shared custody. The plaintiff had been married to the biological father at the time the child was conceived, but this was not a simple case of an affair that produced a child outside of a marriage.

An Unusual Arrangement

The formerly married couple, identified as Dawn M. and Michael M. (Dawn and Michael), were wed in July 1994. They wanted a family, and tried to conceive for some time, but they were unsuccessful. This led them to seek fertility assistance. The plaintiff was artificially inseminated with her husband's sperm, and conception occurred, but the child was miscarried after 10 weeks in the womb. Because there is no other discussion of further fertility treatments in the record, it appears that this was the couple's only medically assisted attempt to have their own child.

In April 2001, the wife met a woman identified in court papers as Audria G (Audria). Audria and Dawn became good friends, and Audria and her boyfriend soon moved into the apartment downstairs from Dawn and Michael. When the boyfriend moved out, Audria moved upstairs with the married couple. By 2004, according to the court, “Audria, plaintiff and defendant began to consider themselves a 'family' and decided to have a child together.” The three of them went to the same fertility doctor who had performed Dawn and Michael's previous artificial insemination procedure, to have Audria similarly implanted with Michael's sperm. The doctor, however, refused to perform the procedure because of the relational circumstances of the proposed biological parents. This being the case, the parties all decided that Michael and Audria should have unprotected sex in order that she might be impregnated. According to Judge Leis, “The credible evidence establishes that it was agreed, before a child was conceived, that plaintiff, Audria and defendant would all raise the child together as parents.”

A child was conceived. During Audria's pregnancy, Dawn accompanied her to most of her medical appointments. Dawn's medical insurance was used to cover the costs of Audria's prenatal visits and the delivery. Dawn was also present at the delivery of the child, on Jan. 25, 2007.

For 18 months following J.M.'s birth, the three adults continued to live in the same home with him. Both women acted as J.M.'s mother, alternating turns taking care of him and taking him to doctors' appointments. However, things began to sour in Dawn and Michael's marriage. Thus, in October 2008, Dawn, Audria and the baby moved out of the marital home and took up residence together elsewhere. Michael commenced a custody case against Audria, but these biological parents settled, agreeing that Audria would retain physical custody of J.M., but that Michael would enjoy liberal visitation rights. This arrangement has not, apparently, been problematic for any of the parties.

In 2011, Dawn sued Michael for divorce. During those proceedings, she testified credibly that after the divorce action was commenced, Michael stopped considering her a mother of J.M. She continues to live with Audria and with J.M., but here sought an order from the court declaring she is entitled to continued shared custody and to visitation. Absent this, Dawn explained, she felt at the mercy of Audria and Michael should they, for any reason, decide to cut off her access to J.M. in future. (Audria continues to live with Dawn and J.M. 10 years after the child's birth, and expressed her strong support for the court's granting Dawn custody and visitation rights in this action.)

A Three-Parent Solution?

Michael moved for summary judgment, contending that precedent set in Alison D. v Virginia M., 77 NY2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991), required the court to deny Dawn visitation and custody rights because — not being J.M.'s biological or adoptive parent — she lacked standing to seek such relief. He argued that Dawn had never acted as a parent, and so should not be granted parental rights. Dawn and the attorney for the child averred that Michael should be estopped from making this claim, for a number of reasons. First, Michael had agreed, even before the child's conception, that he, Dawn and Audria would serve as parents together, in spite of Dawn's lack of any biological connection. He then allowed Dawn to act as one of J.M.'s mothers by permitting her to care for the child just as he and Audria did. When J.M. underwent an operation at the age of two, Michael even told hospital staff that Dawn was one of J.M.'s mothers so that both women could be present in the recovery room. Although Michael testified that J.M. referred to Dawn by her name and not as “mommy,” Audria and Dawn testified to the contrary.

Judge Leis credited their testimony over Michael's, and noted in a footnote that, under Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488), where a 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 parent has standing to seek visitation and custody under DRL 70. “This case represents the logical next step,” wrote the court.

Having concluded that Dawn should be treated as a parent, the court moved on to a best interests inquiry. New York Domestic Relations Law (DRL) § 70, says that a parent may seek custody from the court based solely upon what is in the child's best interest and what will promote the child's welfare and happiness. DRL § 240 also requires courts in divorce proceedings to “enter a custody order having regard to the circumstances of the case and of the respective parties and to the best interests of the child.”

Concerning J.M.'s best interests, Judge Leis stated that Dawn's love for the boy was evident: “Indeed, during her testimony, plaintiff beamed whenever she spoke of J.M.” In addition, in his in-camera interview with the boy, now 10 years old, the child made it clear that he makes no distinction between Dawn and Audria based on biology. In fact, according to the judge, J.M. left “no doubt that [he] considers both plaintiff and Audria to be equal 'mommies' and that he would be devastated if he were not able to see plaintiff. The interview with J.M. also clearly shows that he enjoys his present living situation and would not want it altered in any way.” The child also seemed to love his father and was unaware that his father was seeking to deny Dawn parental rights.

With these facts and J.M.'s best interests in mind, the court considered whether shared custody would be the best option for this family, discussing the teachings of New York's high court, the Court of Appeals, in its decision in Braiman v. Braiman , 44 NY2d 584, 589, 378 N.E.2d 1019, 407 N.Y.S.2d 449 (1978). The Braiman court stated that “children are entitled to the love, companionship, and concern of both parents… [and] a joint award affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child,” but cautioned that, if parents cannot get along, joint custody orders may lead to stress and chaos. “That is not the case here,” stated Judge Leis, because the evidence established that, for the whole of J.M.'s life, Dawn had already been acting as a de-facto custodian parent, sharing in his care and in making parental-type decisions, and yet no major acrimony had arisen among the three adults.

“Plaintiff and defendant have raised J.M. in a loving environment as evidenced by the fact that he does not know that the defendant opposes custody and court-ordered visitation with plaintiff,” stated the judge. He also noted that the three adults “clearly do not present as so embattled and embittered that they will not work together to put J.M.'s needs first. J.M. needs a continuing relationship with the plaintiff as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”

Finding that all three adults would continue to be capable of cooperating and putting J.M.'s needs above theirs, and that having Dawn as a permanent presence in his life would be in J.M.'s best interest, the court awarded joint custody to Dawn. “Such joint legal custody will actually be a tri-custodial arrangement as Audria and defendant already share joint legal custody,” wrote Judge Leis. “As it appears from Audria's testimony that she whole-heartedly supports such an arrangement, this Court finds no issue with regards to Audria's rights in granting this relief. Indeed, tri-custody is the logical evolution of the Court of Appeals' decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL § 10-a[,] which permits same-sex couples to marry in New York.”

Although Dawn asked the court for an order granting her one weekend of visitation per month — which she suggested could be carved out of Michael's already-designated three weekends per month — the court was not convinced. After all, Dawn was already living with J.M. and Audria on a full-time basis, so Dawn saw the boy nearly every day, while taking away one of Michael's three weekend visits might harm his relationship with J.M. Instead, recognizing Dawn's right and need to spend time alone with J.M., the court ordered dinnertime one-on-one visitation between Dawn and the boy on Wednesday evenings, along with one week-long school recess visitation each year and two weeks each summer.

Conclusion

Different though the parental arrangement was for the family involved in Dawn M. v. Michael M., it is not beyond the pale. As social norms become less stringent, families are increasingly coming into being in unconventional ways. The law is adjusting accordingly, as evidenced by this decision and others, so that society and the courts can continue to promote the best interests of children — even those whose families are not of the cookie-cutter variety.

*****
Janice G. Inman is Editor-in-Chief of The Matrimonial Strategist.