On August 30th, the state’s highest court overruled its prior holdings and expanded the definition of parent to grant a standing to seek custody to a domestic partner who agreed with the biological parent to the conception of a child and the raising of the child together. That decision in Matter of Brooke S.B. v Elizabeth A.C.C. was quickly followed by the decision of the Appellate Division, Second Department in Matter of Frank G. v Renee P.-F.
In the September 6th decision of the Second Department, Joseph and Frank were domestic partners who lived together for some five years. Together they asked Joseph’s sister, Renee, to act as a surrogate and give birth to the child resulting from Renee’s being impregnated with Frank’s sperm. The surrogacy contract contemplated that Renee would surrender her parental rights in order for Joseph to adopt the child. The understanding contemplated that Renee would remain a part of the child’s life.
Renee gave birth to fraternal twins in February 2010. Frank and Joseph equally shared parental rights and responsibilities, although Joseph never did adopt the children. The children regarded both of them as their parents. They called Joseph “dada,” and Frank “dad.” Renee frequently saw the children. In early 2014, Joseph and Frank separated, and the children continued to reside with Frank. Joseph, visited and cared for the children on a daily basis.
In May 2014, Frank suddenly refused to allow Joseph or Renee to have any access to the children. In December 2014, Frank moved to Florida with the children without informing Joseph or Renee, or seeking permission from the court.
Both Renee and Joseph sought custody. Departing from precedent reached 25 years ago by the Court of Appeals in Allison D. v. Virginia M., 77 NY2d 651 (1991), Orange County Family Court Judge Lori Currier Woods denied the motion of the biological father, Frank, motion to dismiss the petition of his former domestic partner, Joseph, for custody.
The Second Department affirmed, noting the holding of the Court of Appeals decision issued just days earlier. In the hearing conducted by Judge Woods, Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents.
Although the surrogacy contract was not enforceable as against Renee to deprive her of standing under Domestic Relations Law § 70 (see Domestic Relations Law § 124), it was evidence of the parties’ unequivocal intention that Frank and Joseph become the parents of the children. Moreover, Frank and Joseph equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents. Therefore, Joseph established standing to seek custody or visitation under Domestic Relations Law § 70.