The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop.

In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut to be married. They then returned to live in their home in New York. Subsequently, they decided to have a child. Ms. Bishop was artificially inseminated, and, in September 2010, Ms. Bishop gave birth to a child.

Ms. Counihan was listed as the second mother on the child’s birth certificate. The child’s last name is the hyphenated last names of Ms. Counihan and Ms. Bishop. In 2012, the parties separated, and Ms. Bishop and the child lived apart from Ms. Counihan for several months. However, Ms. Counihan continued to see the child a few times per week, which included overnight visits. The parties briefly lived with each other again at the end of 2012, but their attempt to reconcile failed, and Ms. Bishop again moved with the child to another residence.

In January 2013, Ms. Counihan commenced this action for a divorce and ancillary relief. She sought custody of the child, or in the alternative, visitation. Ms. Bishop cross-moved, inter alia, for sole custody of the child.

In the order appealed from, Suffolk County Supreme Court Justice John C. Bivona determined that Ms. Counihan lacked standing to seek custody or visitation because she was not the child’s biological or adoptive parent. Without a hearing, Justice Bivona had denied Ms. Counihan’s motion and granted Ms. Bishop’s cross-motion for sole custody.

The Second Department reversed. Although, at the time of the child’s birth New York had not yet enacted the Marriage Equality Act (see, Laws of 2011, chapter 95), affording comity to the parties’ Connecticut marriage, the court below should have recognized Ms. Counihan as the child’s parent under New York law.

The appellate court cited the 2010 decision of the Court of Appeals in Debra H. v Janice R., 14 N.Y.3d 576, 599-601, 904 N.Y.S.2d 263.

There, the parties had entered into a civil union in Vermont one month before the child’s birth. Under Vermont’s civil union statute, parties to a civil union enjoyed the same rights  as those of a married couple with respect to a child of either parent during the term of the civil union. The Court of Appeals held that recognition of parentage based on a Vermont civil union would not conflict with New York’s public policy. As the former partner was the child’s parent under Vermont law, she was allowed to seek visitation and custody.

It may also be noted that New York’s Domestic Relations Law §73, yet to be made gender neutral, provides:

1. Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes.

2. The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he had rendered the service.

The Second Department here held that the lower court erred in determining that Ms. Counihan lacked standing to seek custody or visitation of the subject child. The matter was remitted to the Supreme Court for a hearing and, thereafter, a new determination of the motion and cross motion.

Andrea B. Friedman and Jacqueline P. Dicker of Sari M. Friedman, P.C., of Garden City, represented Ms. Counihan. (David L. Mejias, Randi Milgrim, and Katherine Lindo of Mejias, Milgrim & Alvarado, P.C., of Glen Cove, represented Ms. Bishop. Keith Hammeran, of counsel to Susan L. Sommer, of Manhanttan, New York, N.Y. and Allen A. Drexel and William P. Gross of Drexel Grande LLC, of Manhattan, filed an amicus curiae brief for the Lambda Legal Defense and Education Fund, Inc.