Family 2In his March 8, 2017 decision in Dawn M. v. Michael M., Suffolk County Supreme Court Justice H. Patrick Leis III granted a wife “tri-custody” of her husband’s ten-year-old biological son with the wife’s paramour.

Dawn and Michael M. were married in 1994. After unsuccessful attempts to have a child, the couple attempted artificially insemination. Those efforts also failed.

In 2001, the wife met Audria and they became close friends. Audria and her boyfriend moved into an apartment downstairs from Dawn and Michael. When Audria’s boyfriend moved out, Audria moved upstairs. In 2004, the wife, husband and Audria began to engage in intimate relations.

As time went on, Audria, Dawn and Michael began to consider themselves a “family” and decided to have a child together. After the fertility doctor refused to artificially inseminate Audria because she was not married to Michael, the trio decided to conceive a child naturally by Michael and Audria engaging in unprotected sexual relations, and then, to all raise the child together as parents.

A son, J.M., was born to Audria in January, 2007. For more than 18 months, the three “parents” continued to live together. The child was taught that he had two mothers. When the relationship between the husband and the wife became strained, Audria and the wife moved out of the marital residence with the child.

A divorce action was commenced by the wife against the husband in 2011. Prior to the divorce action, a custody case was commenced by the husband against Audria. The husband and Audria settled by agreeing to joint custody; residential custody with Audria and liberal unscheduled visitation accorded to Michael.

The wife still resides with Audria and J.M., and sees J.M. on a daily basis. She brought the current action to assure continued visitation and custody rights for J.M. The wife feared that without court-ordered visitation and shared custody, her ability to remain in J.M.’s life would be solely dependent upon obtaining the consent of either Audria or the husband. Audria was not included as a party.

Justice Leis found that to this day, J.M. continues to call both women “mommy,” a fact confirmed by an in camera interview of the child. He made no distinction based on biology. J.M. is a well adjusted ten-year-old boy who loves his father and his two mothers, and enjoys his present living situation, not wanting it altered in any way.

Although not a biological parent or an adoptive parent, the wife asserted that the best interest of J.M. dictated that the wife be given shared legal custody of and visitation with J.M. Although not a party, Audria strongly agreed. The wife argued, along with the child’s attorney, Teresa Mari, Esq., that the husband should be estopped from opposing this application because he has created and fostered this situation.

Justice Leis noted that the Court of Appeals in Brooke S.B v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016) recognized that a person who was not a biological or adoptive parent could establish standing as a parent to petition for custody and visitation. However, “the ultimate determination of whether to grant those rights rests in the sound discretion of trial courts in determining the best interests of the child.” [Karen G. Silverman, Esq., counsel for the wife, noted that before the Court of Appeals rendered this decision, Justice Leis had earlier found that the wife had standing to seek custody and visitation rights.]

Justice Leis also cited the 1978 Court of Appeals decision in Braiman v. Braiman, 44 N.Y.2d 584, for noting that a shared custodial arrangement recognizes the shared responsibility of parents for and control of a child’s upbringing. As the Court in Braiman noted

children are entitled to the love, companionship, and concern of both parents… [and] a joint award affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child.

Justice Leis concluded that the best interests of J.M. would be served by granting the wife’s application for shared legal custody with the husband, finding that Dawn, Michael and Audria can and will get along as they have in the past. Granting Dawn’s requested relief would maintain J.M.’s psychological stability. All three parents would continue to act in J.M.’s best interests that would be able to cooperate in making major decisions such as health, education and welfare as they had done for his entire life.

Justice Leis held:

Such joint legal custody will actually be a tri-custodial arrangement as Audria and defendant already share joint legal custody. As it appears from Audria’s testimony that she whole-heartedly supports such an arrangement, this Court finds no issue with regards to Audria’s rights in granting this relief.

As to visitation, Justice Leis noted that the husband presently sees his son from Saturday afternoon to Sunday late afternoon, three times a month. As a result, the Court found that to grant the wife’s request for visitation at the husband’s expense would be inappropriate as the wife presently lives with J.M. and sees him regularly when the husband does not have visitation. Recognizing the wife’s need and right to time alone with J.M., Justice Leis granted the wife Wednesday night dinner visitation with J.M. pursuant to a schedule to be established by the wife with input from Audria. Justice Leis also granted Dawn one week-long school recess visitation each year and two weeks of visitation each summer.

The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with the wife. No one told these three people to create this unique relationship. Nor did anyone tell the husband to conceive a child with his the wife’s best friend or to raise that child knowing two women as his mother. . . A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved.

In an interview with this blogger, Ms. Silverman, the wife’s counsel, stated, “We were fortunate to have a very thoughtful and open-minded judge whose primary focus was, as it should be, protecting this child. Brooke SB’s broadening of the term “parent” to include non-biological, non-adoptive partners, by definition and simple math, empowered our judge to recognize more than two parents for this child.”

Kenneth Molloy, Esq. (, counsel for the husband, stated, “There is no such thing as ‘tri-custody’ and there is no legal entity called a ‘thrupple.’ Despite the good intentions of counsel and court, they got it wrong. We all love stories with happy endings, but sometimes, they just don’t have happy endings. This is not just a slippery slope, it’s a cliff.”

Mr. Molloy envisions attorneys everywhere citing this case for custody/visitation whenever people reside together for any period of time. He also pointed to the following questions arising from the decision:

  • This is not a same-sex couple dispute; this child has two parents. Who has the right to make it three?
  • What happens when theoretically the biological mother and her boy friend decide to move to Canada? How many people are going to be in the court room arguing the relocation case?
  • What happens when the two women have a falling out or one moves away?
  • What happens when there is an important decision and they are unable to agree?
  • What about child support? Are three people now obligated to share that expense?
  • What happens when the next case comes down the pike and the parties are not so amicable toward each other?
  • What happened to the rights of the biological mother who was NOT a party to this action, nor was she represented by counsel?
  • One of the most carefully protected rights we have is the right to parent our own children. For many years, even grandparents could not cross that line. Now what — aunts, uncles, neighbors?