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During the first months of 1998, petitioner and respondent began living together


During the first months of 1998, petitioner and respondent began living together. On 28 August 1998, the parties were married in the State of New York. Both parties were aware of the fact that petitioner was born a woman but lived as a man since he was a teenager. On 8 June 1998, petitioner legally changed his name. Since the age of 15, petitioner adopted the hair style, clothing, demeanor and name of a man. Thereafter, petitioner received hormone treatments to effectuate a fully masculine appearance. Petitioner plans to undergo gender reassignment surgery in the future.

Meanwhile, respondent stated that despite knowing that petitioner was born a female, she agreed to marry petitioner. The couple filled out the marriage certificate together. Respondent claims that the first year of marriage was happy and that in the beginning of the second year, in 1999, petitioner became physically abusive.

After four years of marriage, respondent agreed to conceive a child through artificial insemination with petitioner, despite the alleged continued abuse. In 2001, the parties agreed that the mother would undergo artificial insemination and the parties selected a sperm donor whose characteristics and interests matched those of petitioner. The parties collaborated on, contributed to and supported the artificial insemination process. Petitioner signed the consent form for respondent to be inseminated. The procedure had to be repeated three times before it resulted in a pregnancy which concluded with the birth of the subject child on 13 June 2002. The parties submitted a birth certificate which reflected that petitioner was the father of the child and that respondent was the mother of the subject child. According to the parties, the child was born premature and had to remain in the hospital for over one month after his birth. In a letter dated 20 September 2007 written by a doctor, he described the subject child as a five-year old child born premature and asthmatic. The child has been diagnosed as having asthma but the parties disagree whether the condition is aggravated by the consumption of dairy products.

The subject child has been hospitalized in Queens and Staten Island for a while. It is undisputed that petitioner financially supported the family for approximately six months while respondent took a leave of absence from her employment to care for the infant. The medical and school records of the child reflect that petitioner is the father of the child. According to petitioner, respondent eventually returned to work; that respondent worked long hours and spent days away from the marital residence for her employment while petitioner would provide daily care for the child. Sometime after May of 2006, the parties became estranged. It is undisputed that respondent left the marital home in May of 2006 and left the child in the physical custody of petitioner. Although respondent failed to file a petition in a Family Court for a temporary order of protection, respondent alleged that she was forced to leave the residence due to the domestic violenceperpetrated by petitioner.

Petitioner alleged that respondent left the residence to move into the apartment of another man. On the contrary, respondent alleged that she left the marital residence on 3 August 2007 to escape the abuse and that petitioner picked up the child from the babysitter without her knowledge. Respondent never explained why she left the child with petitioner when she did not intend to return to the marital residence.

On 19 July 2007, petitioner filed a petition for custody.

On 6 August 2007, respondent filed a cross petition for custody. Respondent claims that it would be in the best interest of the child if custody was awarded to her; that petitioner committed acts of domestic violence against her while they lived together and that she feared for the safety of the child; that the petitioner was actually a woman and therefore the marriage was invalid. On the same day, respondent filed a family offense petition against petitioner alleging that he threatened her with a knife.

On 24 August 2007, the Kings County Family Court ordered that the child remain in the temporary custody of petitioner and directed that respondent be granted visitation every Sunday.

On 28 September 2007, respondent made an application seeking the transfer of temporary custody of the child since petitioner was actually a woman and the child was conceived by artificial insemination. The Family Court declined to hear argument on that application since a proceeding regarding the validity of a marriage could properly be determined only by the Supreme Court.

Thereafter, a court order of investigation was conducted by the Administration for Children’s Services (ACS). Respondent acknowledged to the Child Protective Services investigator that the parties agreed to have a child and agreed to use artificial insemination in order to have a child; that she knowingly entered into a relationship with petitioner and willingly entered into a fraudulent marriage despite the fact that petitioner is biologically a woman; that she and petitioner openly lived together as husband and wife for four years before the subject child was born; and, that she never objected that the subject child acknowledged petitioner as his father and she allowed the child to call petitioner “Dad” without admonition. According to the attorney for the child, he has steadfastly referred to petitioner as his father and respondent as his mother. The parties attempted to settle the custody and visitation issues while petitioner exercised temporary custody and the court granted expanded visitation to respondent. On 23 December 2007, during a visitation exchange, respondent alleged that petitioner threatened her in violation of a temporary order of protection and petitioner was arrested.

On 8 January 2008, the proceedings were transferred to IDV-2 in Kings County Supreme Court.

On 21 March 2008, respondent initiated a contested matrimonial proceeding in Supreme Court which was transferred to the herein court.

On 5 May 2008, in the matrimonial proceeding, the herein court continued the temporary order of custody of the child to petitioner. Petitioner reported that respondent repeatedly gave the subject child food containing dairy products which aggravated his asthma and neglected to give him his asthma medication as prescribed. The child reported to his attorney, that, at times, he shared respondent’s bed with her boyfriend.

On 21 July 2008, the parties consented to the issuance of a declaratory judgment in the matrimonial proceeding which adjudged the marriage to be void. Subsequent to the resolution of the matrimonial proceeding, the child reported to his attorney that there was an increased use of derogatory language by respondent about petitioner. Petitioner alleged that respondent used vulgar epithets to refer to petitioner when speaking to the subject child including “bitch,” “fucking bitch” and “fucking idiot.”

On 8 August 2008, the child made an allegation to his attorney of excessive corporal punishment by respondent which was reported to the court. The child described, to his attorney, that he was struck with a belt on the genitals and on the buttocks by respondent. On 14 August 2008, the temporary order of visitation was suspended. Visitation with respondent was reinstated after further investigation and a series of supervised visits.

On 16 June 2009, respondent made an application to transfer custody of the child pending a fact-finding hearing. The request was based on an allegation that petitioner failed to provide the child with medical care and for violation of the court direction that petitioner cooperate to assure that respondent would see the child on his birthday although it occurred during petitioner’s parenting time. Respondent also moved to dismiss the petition for custody since petitioner had no standing, as a biological stranger, to seek custody or visitation with the subject child.

On the contrary, petitioner contends that the doctrine of equitable estoppel should prevent respondent from claiming that petitioner was not the legal parent of the subject child and that extraordinary circumstances exist to establish the legal standing to petition for custody or visitation.

The Issue:

Does petitioner have standing to petition the court for custody of a nonbiological child? Does an extraordinary circumstance exist to warrant the award of custody to petitioner?

The Ruling:

The law has long been settled in New York that a parent’s right to the care and custody of a child is superior to that of all others, absent a showing that the parent has abandoned the child or is unfit to discharge the obligations of parenthood. A finding of “extraordinary circumstances” is the threshold burden to be addressed before any examination as to the best interest of the child is made on a petition for custody filed by a nonbiological party. The petitioner bears the burden of establishing the existence of such extraordinary circumstances. A prolonged separation between the biological parent and the child wherein a psychological parent has bonded to the child would satisfy the threshold of extraordinary circumstances and afford standing to a petitioner seeking custody of a child. Psychological bonding between a nonbiological parent and a child has resulted in a court finding that extraordinary circumstances did exist which allowed the nonbiological party to petition a court for custody of a child. Extraordinary circumstances may be found even in the absence of a finding of unfitness by the biological parent. If removal from the custody of a nonparent would cause significant emotional injury since a strong bond developed between a child and the nonbiological parent, the possibility of that injury would justify a finding of extraordinary circumstances.

In the instant case, the proceedings reflect that the subject child has a strong emotional and psychological bond with petitioner and, in fact, petitioner is the only father that the child has known. This situation was created with the active cooperation of respondent when the parties entered into the marriage. Petitioner and respondent lived as husband and wife for at least eight years, executed a marriage certificate, completed an artificial insemination consent form, filed a birth certificate which identified petitioner as father of the child, and encouraged the subject child to accurately and without qualification address and consider petitioner as his father for more than six years.

The circumstances presented here reflect an unfortunate disruption of custody of the biological parent over an extended period of time. The voluntary abdication of physical custody and parenting responsibility by the biological parent under the color of the law since the conception of the child, and the credible allegations of inappropriate parenting decisions by the biological parent which, together, amount to sufficient compelling circumstances to apply the doctrine of equitable estoppel to the analysis of the total circumstances of the dispute. These circumstances alone support a finding of exceptional circumstances in the case.

Notably, petitioner petitioned for custody while the parties were still married. Petitioner was the legal parent of the subject child at conception and birth and respondent gave petitioner full parenting authority over the subject child for almost six years before raising any objection to the arrangement. Petitioner acquired his status as husband to respondent and father to the subject child for more than six years only because of the active cooperation of respondent for more than nine years. Respondent now seeks to prevent petitioner from having any relationship with the subject child who has only known one person, petitioner, as his father for more than six years. In addition, respondent never explained why, when she left the marital residence, she left the child in the actual physical custody of petitioner between July and August of 2007 (Family Court and Supreme Court granted temporary custody to petitioner), why she made no effort to set aside the marriage until 21 March 2008, although she alleged the parties were estranged and why she made no issue of the standing of petitioner until he was granted temporary custody of the subject child in Family Court. During the proceedings, there were allegations that respondent used excessive corporal punishment, inadequately supervised the child in her home and failed to attend to the child’s health or dietary needs properly. Respondent now seeks an order which would transfer custody of the child and deny petitioner standing to petition for custody after fostering the psychological bond between petitioner father and the subject child for almost six years. It is more than likely that if the relationship is terminated, it would have a devastating psychological and emotional effect on the child. The biological mother planned, enabled and encouraged the development of a father-son relationship between petitioner and the subject child. Petitioner and the attorney for the child submit that respondent should be equitably estopped from raising the issue of standing under these particular circumstances. The doctrine of equitable estoppel is generally imposed by a court in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought.

Clearly, from the facts adduced, an abrupt termination of the father-son relationship which petitioner and respondent together created would put the child in a situation where his welfare could be affected drastically and, thus, an extraordinary circumstance exist requiring inquiry into the child’s best interests. Respondent through her words and deeds held out petitioner as the father of the child. In addition, the subject child is now seven years old and the additional years of relationship have dramatically increased the potential for a traumatic effect on the subject child if that father-son relationship with petitioner would be terminated. It is not unreasonable to believe that the parties here created an expectation by petitioner that he would have standing to seek custody or parenting time. Petitioner relied on the statements and actions of respondent to enter and foster a relationship with the subject child; if respondent can now preclude petitioner from being heard, no fact-finding will be conducted on the traumatic effect a termination of that father-son relationship, encouraged by respondent for six years, would have on the child.

There are statutory provisions of particular relevance which recognize petitioner’s legal status notwithstanding the fact that the marriage was eventually judicially declared null and void. Domestic Relations Law § 73 establishes parental rights to a child conceived via artificial insemination with the consent of both parties. Such a child is considered the legitimate child of the parents at the time of insemination and the permission of the nonbiological parent is required before another party can adopt that child. Domestic Relations Law § 73 recognizes that any child born to a married woman by artificial insemination performed by persons duly authorized to practice medicine and with consent in writing of the woman and her husband, shall be deemed the legitimate birth child of the husband and wife.

Moreover, the Appellate Division, First Department, has held that allowing the de facto father of a child to contest the legal relationship between that child and himself, which was ongoing for 11 years, because the de facto parent was not married to the biological mother, was an error. A “formulaic approach” that allows only a biological or adoptive parent to be a parent to a child may not always be appropriate.

The exact quantum of evidence needed by a petitioner to establish extraordinary circumstances may not be clearly or exactly measured, but the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role certainly should be factors to be considered.

Here, the child has known petitioner as his father for his entire life and petitioner has had temporary custody of the child throughout all of the proceedings. Respondent did not raise the issue of the biological status of petitioner in the proceedings and, in fact, hid it from the child and the rest of the world until petitioner filed a petition for custody of the child. Respondent never sought exclusive parental responsibility for the child until the child was five years old although it is undisputed that she is the biological parent of the child. Petitioner, the nonbiological parent, enjoyed legal status as husband to respondent and as father to the child through conception, birth and until the child was more than six years old when the marriage was declared null and void. It is not in dispute that the child has a strong emotional and psychological bond with his father despite the fact that there is no biological relationship with the child. The fact that petitioner is biologically a woman is immaterial.

In sum, based on the statements of the parties in their affidavits, the reports submitted, and the court’s observations of the demeanor and conduct of the parties in court, petitioner has sustained his burden of proof to establish the presence of extraordinary circumstances to grant standing to proceed with a petition for custody. Furthermore, there are additional equitable considerations present that were created by both of the parties who entered into the marriage. Respondent should be equitably estopped from challenging the standing of petitioner to seek custody since respondent perpetrated the fraud and derived benefits from it until she raised it in the matrimonial action. Respondent abdicated her parenting authority to petitioner and actively encouraged the creation of a father-son relationship between petitioner and the subject child. In fact, respondent does not dispute the existence of a close father-son relationship.

For similar matters, contact a Kings County Family Lawyer at Stephen Bilkis & Associates. We offer our assistance with our free legal consultations. Know your rights and learn how to protect and enforce them. Call us now and seek legal advice with the country’s best Kings County Child Custody Attorneys, Kings County Child Support Attorneys, and the like.

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