Although existing family law is slowly attempting to get up to speed regarding same sex couples, many complicated situations remain. Suffolk County family court judge, Teresa Whelan’s recent decision in Estrellita A. v Jennifer D. may just be the first nail in the Alison D. coffin, a 1991 case where the court held that a non-biological parent had no rights. I like this new decision but we will have to wait to see if there will be an appeal.

This matter, which involves a separated lesbian couple fighting over child custody and support, is representative of the kind of the situation that could very appropriately be resolved using collaborative law, a non-adversarial, alternative method of dispute resolution which can be especially useful when children are involved.

Estrellita and Jennifer were registered as domestic partners in 2007. Thereafter, they decided to have a child, using an anonymous sperm donor. Jennifer became pregnant and a daughter, Hannah, was born in November of 2008. The couple never completed a second parent adoption and stopped residing together in September of 2012. Then Jennifer sued Estrellita in Suffolk county family court stating in her petition that she and Estrellita had a child in common, and asking for child support.

The court conducted a hearing on the issues, and ruled in favor of Jennifer, the biological Mom, ordering Estrellita to begin paying child support. Estrellita then filed a petition for custody of their daughter in the same court. Jennifer filed a motion to dismiss the court petition, claiming that, under the current cases in New York, Estrellita does not have the right to sue for custody as she is a legal “stranger” to the child, absent an adoption.

(Remember, two years ago the highest court in New York state handed down two seemingly disparate decisions on the same day, one indicating that a non-bio Mom did not have the right to sue for custody or visitation of her child absent a second-parent adoption of her child (a proceeding which requires the cooperation and consent of the biological mother), unless she was married to the bio Mom (or in a marriage equivalent such as a civil union) at the time of the birth of her child. (Alison D v Virginia M. and Debra H. v. Janice R.) The other case indicated that a bio Mom could sue her former domestic partner for child support, even if there was no adoption or marriage/civil union in place at the birth of their child. Part of that decision relied on the court’s prior decisions In Matter of Shondel J. and Jean Maby H. v Joseph H. This schizophrenic approach to LGBTQ families by the highest court in New York state, has lead to those of us practicing in this area to refer to non-Bio mothers as “ATM Moms”. What a crazy situation–to be expected to support children while your former partner has the power to keep you from seeing them altogether.

Ok, so now back to the story:

The court said, “hold on!! This is colloquially known as “having your cake and eating it too!” You can’t come into my court asking for child support from a person you describe in your petition as “a person with whom I have a “child in common”, I order that person to pay you child support, and then, when she sues you in a proceeding for custody of your daughter you deny that she is a parent and make the claim that she has no standing to bring a custody or visitation proceeding!!”

Judge Whelan dismissed the motion and ordered that the parties appear before her as soon as possible to resolve the issues of custody and visitation. We shall see what happens next!

Estrellita A v. Jennifer D. sends a message to those biological parents who would prefer to take the easy way out by pulling rank in every possible way– demanding money from former partners while threatening to prevent them from seeing the children they love–to take a very deep breath, set your own personal feelings of animosity for your former partner aside, and get down to the business of determining what is best for your children– emotionally as well as financially.

Your co-parent should have the same rights as all parents– to state his or her case to a judge, who is bound by law to make a determination which is in the best interests of your child.

Or better yet, find a good mediator, collaborative attorney, or counselor, to assist you in working out a parenting and financial plan in a non-adversarial way, putting the needs of your children first.

Carol Buell

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