Dawn M. v. Michael M.
55 Misc. 3d 865, 47 N.Y.S.3d 898 (2017)
Rule of Law:
A court may grant shared legal custody and visitation rights to a non-biological, non-adoptive parent when the child's biological parents agreed to raise the child together with that third party, the arrangement is in the child's best interests, and the biological parent is estopped from denying the third party's parental status.
Facts:
- Plaintiff Dawn M. and Defendant Michael M. were married on July 9, 1994, and after unsuccessful attempts, Dawn miscarried a child conceived through artificial insemination with Michael's sperm.
- In April 2001, Dawn met Audria G., who later moved in with Dawn and Michael.
- Sometime in 2004, the relationship between Dawn, Michael, and Audria became intimate, and the three began to consider themselves a 'family,' deciding to have a child together.
- A fertility doctor refused to artificially inseminate Audria with Michael's sperm because Audria was not married to Michael, so Dawn, Michael, and Audria agreed that Michael and Audria would conceive a child naturally, and all three would raise the child together as parents.
- Audria became pregnant, and J.M. was born on January 25, 2007; Dawn's medical insurance covered the pregnancy and delivery, and she accompanied Audria to most doctor appointments.
- For more than 18 months after J.M.’s birth, Michael, Dawn, and Audria lived together, with Dawn and Audria sharing mothering duties for J.M., including night feedings and doctor visits.
- In October 2008, Audria and Dawn moved out of the marital residence with J.M.; Dawn continues to reside with Audria and J.M. and sees J.M. daily.
- J.M., now 10 years old, considers both Dawn and Audria his mothers, referring to them as 'mommy with the orange truck' and 'mommy with the grey truck,' and shows no distinction based on biology.
Procedural Posture:
- Plaintiff Dawn M. commenced a divorce action against Defendant Michael M. in 2011.
- Prior to the divorce, Defendant Michael M. commenced a custody case against Audria G.
- Michael M. and Audria G. settled their custody proceeding by agreeing to joint custody, with residential custody to Audria and liberal visitation to Michael.
- Plaintiff Dawn M. moved the court to grant her 'tri-custody' of J.M.
- Defendant Michael M. moved for summary judgment, arguing Dawn M. lacked standing, but the court denied this motion based on the Marriage Equality Act and its analysis of Vermont Law.
- The court ordered a trial to determine custody and visitation rights between Dawn M. and Michael M. regarding J.M.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Can a non-biological, non-adoptive parent be granted shared legal custody and visitation rights over a child when the child's biological parents agreed to raise the child together with the non-biological parent, and it is in the child's best interest to do so?
Opinions:
Majority - H. Patrick Leis, III, J.
Yes, a non-biological, non-adoptive parent can be granted shared legal custody and visitation rights over a child when the child's biological parents agreed to raise the child together with the non-biological parent, and it is in the child's best interest. The court found that J.M.'s best interests mandated granting Dawn M.'s application for shared legal custody, creating a 'tri-custodial' arrangement, and visitation. The court reasoned that Michael M. was estopped from denying Dawn M.'s parental rights because he voluntarily agreed, before conception, to raise J.M. with Dawn M. and Audria G. as three parents and actively fostered J.M.'s bond with Dawn M. as a mother. Citing Brooke S.B. v Elizabeth A.C.C. and Braiman v Braiman, the court emphasized the paramount importance of the child’s psychological stability and established relationship with Dawn M. The court noted that Dawn M. and Michael M. could cooperate, as evidenced by J.M.'s unawareness of the dispute, and that Audria G. wholeheartedly supported the arrangement. The court viewed 'tri-custody' as a logical evolution of Brooke S.B. and the Marriage Equality Act, recognizing the child's need for a continuing relationship with all three parents they identify as mothers and father.
Analysis:
This case significantly expands the scope of parental recognition beyond biological or adoptive ties by establishing a 'tri-custody' arrangement for a non-biological, non-adoptive parent. It builds upon Brooke S.B. by not merely granting standing, but actual custody and visitation, emphasizing the 'best interests of the child' and the principle of equitable estoppel in unconventional family structures. The decision reflects an evolving legal landscape that acknowledges and validates diverse family compositions, especially in light of developments like marriage equality. Future cases may rely on this precedent to recognize de facto parental relationships where adults intentionally create multi-parent families and foster strong bonds with children.
