Same Sex Couples and Child Custody

Child Custody, Same Sex Couples, Biological Strangers, and Parenting TimeSame Sex Couples and Child Custody

During his time as an experienced family lawyer, trained mediator, and litigator, Mr. Darren M. Shapiro Esq. has helped to navigate families through various disputes, involving everything from equitable distribution to child parenting time. Although progress is certainly being made throughout the courts of the United States in regards to same sex couples and parenting rights, it's safe to say that legal disputes between gay and lesbian parents can be incredibly complicated. Though Mr. Shapiro can work alongside his clients to help them pursue their best interests in any case, he is restricted by the extent of the New York law.

For example, the law in New York determines that a non-adoptive, non-biological parent will not have the required legal standing to pursue a case in court for either parenting time or custody. However, there is a statute in place that allows for grandparents standing to petition for visitation and custody under very specific circumstances. In the past, the highest court of New York - the Court of Appeals - chose to reaffirm its rule that neither parents standing in "loco-parentis" nor by the doctrine of equitable estoppel should be given grounds to seek parenting time and visitation in court. In other words, the rule states that biological strangers that have not officially adopted a child cannot proceed in the courts of New York in a case for visitation or custody. But, as the two different results in cases as detailed below, perhaps this rule is in flux in the wake of passage of our same sex marriage laws.

The law as it stands today was reaffirmed by the Fourth Appellate Department - which is responsible for covering part of upstate New York in 2015, the case of Matter of Barone v Chapman-Cleland, 129 A.D.3d 1578 (2015) - which determined that adoption or biology under our current statutes are the factors that define what a parent is. For this information to be changed, there needs to be an alteration in the legislation. In the previously mentioned case, a same-sex partner to a biological parent unsuccessfully attempted to approach the court for visitation and custody rights. However, the court ruled that the former partner didn't have the right standing required to proceed with her case, as she was a biological stranger who had never actually adopted the child. As Mr. Shapiro frequently reminds his clients, relying on the fact that you may be very much like a parent to the child is not enough.

The second Appellate department, which covers Suffolk County Long Island, and Nassau County as well as Queens County, some other parts of New York City and surrounding areas, recently permitted a domestic partner to proceed with a visitation and custody petition based on a consideration of judicial estoppel - not to be confused with equitable estoppel. Matter of Arriaga v. Dukoff, 123 AD3d 1023 (2d Dept. 2014). In this particular case, the domestic partner and non-biological parent was considered in a supporting proceeding to be chargeable with matters of support - therefore defining them as a parent for support purposes according to the doctrine of equitable estoppel. In the parenting time and custody case, the doctrine of judicial estoppel was considered, and the Second Department reasoned that it wasn't contradicting the concept that equitable estoppel shouldn't confer the right to proceed for visitation and custody. The court suggested that since the biological parent’s position, which she was successful on in the support proceeding, was that according to equitable estoppel that the non-biological parent should be classed as a parent for reasons of support, she should also be judicially estopped from giving alternative positions in the parenting time and custody case.

Mr. Shapiro can give his clients information about the concept of equitable estoppel when necessary. For example, he describes to them the fact that equitable estoppel defines a finding by the court, when the court find the best interest of the children require such a finding, and criteria are met, to consider a person the parent of a child when they have held themselves to be so. Often, a person holds themselves as a parent when they support the child financially, or exercise visitation or parenting time rights. On the other hand, the concept of judicial estoppel prevents an individual from attempting to take a different position in a case, which would be contrary to a position that may have already been taken in earlier legal proceeding that they were successful in.

In conclusion, Mr. Shapiro regularly informs his clients that parents in a custody and parenting time case might be given the right to make decisions about the child's welfare, health, and education. In a support proceeding, parents are also responsible for supporting their children on a financial level. When a married, heterosexual couple has a child, both parents are presumed to automatically obtain the definition of legal parents - even if the couple divorces. However, ever since same-sex marriage laws were introduced, the laws in relation to relationships and children are still in the process of developing. Darren Shapiro often advises his clients that relying upon an assumption that the status of "legal parent" will automatically attach upon birth of a child can be a risky move in some circumstances. Though on a basic level, it may all seem like semantics, the state of the law as it is means that adoption by same sex parents remains the safest way to ensure legal parental rights.

For help understanding the details of visitation and parenting rights in association with same-sex relationships, marriage, and divorce, please reach out to us for more information and guidance. If you would like to utilize the skills of Mr. Shapiro as a litigator, settlement negotiator, mediator or collaborative lawyer, please also feel free to schedule your free half-hour consultation at your earliest convenience. You can call about your appointment in office or otherwise. It would be our pleasure to speak with you regarding your needs.

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