In an opinion issued on April 10, New York Family Court Judge Carol Goldstein confronted the question whether there can be a third parent – an adult with legal rights to seek custody and visitation of a child who already has two legal, biological parents – in the context of a married gay male couple and the woman who agreed to have a child with them and share parenting. She concluded that the “non-biological father” in this triad has “standing” under New York’s Domestic Relations Law to seek custody and visitation of the child, but not necessarily to be designated as a “legal parent.” The case is Matter of David S. and Raymond T. v. Samantha G., 2018 N.Y. Misc. LEXIS 1249, 2018 N.Y. Slip Op 28110 (N.Y. County Family Court, April 10, 2018).
As usual in contested child custody cases, the judge assigned pseudonyms to the parties and the child in order to protect their privacy, naming the men David S. and Raymond T., the woman Samantha G., and their child Matthew Z. S.-G.. Throughout the opinion, however, she refers to the adults as Mr. S., Mr. T., and Ms. G.
The adults were all friends. “Over brunch in May 2016, the three friends discussed how each wished to be a parent and devised a plan whereby a child would be conceived and raised by the three parties in a tri-parent arrangement,” wrote Judge Goldstein. “While the parties agreed that the mother would continue to live in New York City and the men would continue to reside together in Jersey City, the parties agreed that they would considered themselves to be a ‘family.’” They carried out this plan, but never reached agreement on a signed written document.
Over a period of eight days, Mr. S. and Mr. T. “alternated the daily delivery of sperm to Ms. G for artificial insemination. On or about Labor Day weekend, 2016, Ms. G. announced that she was pregnant. The three parties publicized the impending birth on social media with a picture of all three parties dress in T-shirts. Misters S. and T.’s shirt each said, ‘This guy is going to be a daddy’ and Ms. G’s shirt said, ‘This girl is going to be a mama.’”
They all participated fully in preparing for the arrival of the child, attending a natural childbirth course, creating a joint savings account for the child (to which Mr. T. had, as of the time of the court’s hearing in this case, contributed 50% of the funds), agreeing on a pediatrician and making medical decisions jointly, and planned that the child would be delivered with the assistance of a midwife at the men’s New Jersey home. This occurred on May 6, 2017.
It was not until after the child was born that a “private genetic marker test” determined that Mr. S.’s sperm initiated the pregnancy. He signed a New Jersey acknowledgment of paternity on May 11. They named the child using names of significance from all three families. After Matthew was born, the entire family spent a week at the men’s home, after which Ms. G returned with Matthew to her home in New York County (Manhattan). Matthew, still an infant, lives mainly with his mother, although the men have had regular parenting time and last summer the parties vacationed together in the Catskills.
Because infant Matthew was nursing on demand, overnight visits with the men had not been scheduled, but were supposed to start during April. “When speaking to Matthew,” wrote the judge, “all parties refer to Ms. G. as ‘Momma,’ Mr. S. as ‘Daddy’ and Mr. T. as ‘Papai,’ which is Portuguese for father.” All three parents were present at the hospital when Matthew had hernia surgery at two months.
Mr. T. and Ms. G. have a contract with a literary agent to write a book about their joint parenting venture. In recognition of Mr. T’s profession of meteorology, the provisional title is ‘Forecasting a Family.’”
However, wrote Judge Goldstein, “Issues arose between the two men and Ms. G with respect to the parenting of Matthew as well as to the extent of parental access by Misters S. and T. The relationship among the parties became strained.” Misters S. and T. filed a joint petition in the Family Court in New York County on November 12, seeking “legal custody and shared parenting time” with Matthew by court order. On December 6, Ms. G filed a “cross-petition” seeking sole legal custody of Matthew, with the men being accorded “reasonable visitation.” None of the parties was seeking an “order of paternity or parentage” in their initial filings with the court.
The court asked the parties to submit memoranda of law about the parenting issues, and how the N.Y. Court of Appeals’ Brooke S.B. decision from 2016 might apply. In Brooke S.B., the court overturned a 25-year precedent and ruled that a non-biological parent could have standing to seek custody and visitation under certain circumstances. That case involved a custody and visitation dispute of a lesbian couple over a child born to one of them through donor insemination.
The main issue of dispute between these parties, which came out in their briefs, is about Mr. T.’s legal status toward the child. Under New York law, the husband of a woman who gives birth is presumed to be the child’s father, but the legal status of a man who is married to another man whose sperm is used to conceive a child with a woman to whom he is not married presents new, unresolved legal issues. Ms. G agrees that Mr. T. should have standing to seek visitation, but she argued “strenuously” that “the right to seek custody and visitation as a ‘parent’ under the Domestic Relations Law does not automatically bestow parentage on the non-biological party” and asked that the court not declare Mr. T. to be a third legal parent. On the other hand, the men argued that not only should Mr. T. have standing to seek custody and visitation as a ‘parent,’ but that the court should also declare him to be a third legal parent of Matthew.
Judge Goldstein found that under the circumstances of this case, with an emphasis on the understanding and agreement of the parties when they devised their plan to have and raise a child together, it was clear that Mr. T. has standing to seek custody and visitation in line with the Brooke S.B. decision. “In making this decision,” she wrote, “this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.”
She identified as the “fundamental principle” of the Court of Appeals precedent that the state’s domestic relations law “must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure. The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.”
The judge noted the likelihood that this kind of situation will recur, pointing out the differences between the use of anonymous sperm donors where no parental role is contemplated for the sperm donor, and the situation where a known donor is involved “where the parties agree that the provider of the egg or sperm will be a parent.”
She also noted recent New York decisions that had denied standing or parental status to sperm donors, where all these circumstances were not present, particularly where lesbian couples obtained sperm from a known donor but there was no understanding or agreement that the donor would be considered a parent of the child. These situations are less difficult to analyze from a legal perspective if the parties negotiate and sign carefully worded written agreements memorializing their understanding of their rights and responsibilities, although such documents are not binding on a court, whose main task under the domestic relations statutes is to make such decisions in the best interest of the child.
The court found that the usual “presumption of legitimacy” used to determine parental standing in donor insemination cases was not relevant in considering the status of Mr. T., even though Mister S. and Mr. T. are married to each other. “This is because the presumption that Matthew is the legitimate child of the married couple, Misters S. and T., would indisputably be rebutted by evidence that all three parties agreed that Matthew would be raised in a tri-parent arrangement and that Ms. G., the biological mother, would be a parent to Matthew.” In other words, this is not a gestational surrogacy case, where the woman’s only role was to produce the child and agree to forego parental rights.
However, noting that the men’s original filing with the court did not seek an order of “parentage” on behalf of Mr. T, the judge declined to issue such an order. “Moreover,” she wrote, “there is no need for the issue of parentage to be addressed since pursuant to Brooke S.B., Mr. T. may seek custody and visitation as a ‘parent’ under DRL section 70(a) without a determination that he is a legal parent. If, in the future, a proper application for a declaration of parentage is made and there is a need for a determination of parentage, for instance, to rule on a request for child support, the court may address this issue. This court, however, notes that there is not currently any New York statute which grants legal parentage to three parties, nor is there any New York case law precedent for such a determination.”
So a child can have three parents, or at least three adults with standing to seek custody and visitation, while at the same time having only two “legal parents,” in New York. Unfortunately, New York’s Domestic Relations Law has not been revised by the legislature to take account of the sorts of “non-traditional” family structures that have emerged over the past half century as assisted reproductive technology has become relatively easy for people to use without the assistance of medical specialists and a diversity of family structures have arisen through social evolution.
This case will now proceed to consideration by the judge about what kind of custody and visitation arrangement would be in Matthew’s best interest, to embody in a formal order that would protect Mr. T’s rights as a non-biological parent. While having determined that Mr. T has standing to seek custody and visitation, the judge’s opinion expresses no view as to the viability of tri-partite custody, without actually ruling it out as a possibility.
Misters S. and T. are represented by Patricia A. Fersch. Ms. G is represented by Alyssa Eisner, or Sager Gellerman Eisner LLC.