The New York Appellate Division, Second Department, an intermediate appellate court based in Brooklyn, issued a unanimous ruling on April 6 affirming a decision by Suffolk County Family Court Judge Deborah Poulos recognizing the parental status of a lesbian co-parent, now resident in Arizona, who is seeking visitation with two children who were conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse. The birth mother and children live in Suffolk County. The case is Matter of Kelly S. v. Farah M., 2016 N.Y. App. Div. LEXIS 2533, 2016 N.Y. Slip Op 02656.
The lead sentence above is complicated, but not more so than the decision by Justice Sheri S. Roman, which methodically works its way through several complex issues to arrive at a total affirmance of Judge Poulos’s decision from March 2015, which not only upheld the co-parent’s standing to seek visitation but also rejected the birth mother’s attempt to institute a paternity action against the sperm donor for both children. Justice Roman’s opinion refers to the parties as Kelly S. and Farah M., but an article about the decision published in Newsday on April 9 identifies them as Kelly Steagall and Farah Martin.
According to the decision, Kelly and Farah began their relationship around March 2000 and became registered domestic partners in California in January 2004. Shortly afterwards they asked a close friend, Andrew S., to donate sperm so they could have a child together. Kelly became pregnant and bore their first child, whom Farah legally adopted. That child is not a subject of this lawsuit.
Kelly and Farah decided to have another child, and Andrew again donated sperm. This time Farah became pregnant, giving birth in March 2007 to Z.S. Kelly was listed as a parent on the birth certificate and the child’s legal surname is Steagall.
After the California Supreme Court ruled for marriage equality in 2008, Kelly and Farah decided to get married, which they did that August. A few months later the voters approved Proposition 8, ending new same-sex marriages in California until it was declared unconstitutional several years later. In the meantime, however, the California Supreme Court ruled in 2009 that same-sex marriages performed prior to the passage of Prop 8 remained valid. Kelly and Farah decided to have a third child and Andrew again donated sperm so that Farah could become pregnant. Their third child, E.S., was born in April 2009. Kelly was again listed on the birth certificate as a parent, and E.S. received Kelly’s surname.
In 2012 the family relocated to New York State, but Kelly and Farah soon split up and Kelly moved to Arizona in the summer of 2013. The children remained in New York with Farah. As diplomatic relations between the women were poor, Kelly filed a visitation petition in the Suffolk County Family Court, seeking visitation with Z.S. and E.S. She alleged that the women were legally married in California and Kelly was a legal parent of the two children, whom she had helped to raise until the parties split up.
Farah moved to dismiss the case, arguing that Kelly lacked standing under New York law to seek visitation, invoking the old New York precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), under which same-sex co-parents were deemed to be “legal strangers” to their children. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition. Although Andrew had never sought to establish his paternity, he was a close friend of the women and had formed a loving relationship with the children and they with him. Farah evidently hoped that if the court declared Andrew their legal father, that would cut off Kelly’s claim, because New York does not recognize that a child can have more than two legal parents at the same time.
Farah argued in opposition to Kelley’s standing that Z.S. was born before the women were married, and that Kelly should not be deemed their parent because the insemination did not follow the prescribed route under either California or New York donor insemination statutes, which specify the involvement of a doctor in performing the insemination and a written consent from the birth mother’s spouse in order to raise a presumption of parental status for the spouse. Both of these children were conceived through insemination at home without the aid of a physician.
LGBT family law has advanced so significantly in both California and New York since the turn of the century that Farah’s arguments clearly lacked merit. Same-sex marriage is legal in both states, and New York’s Marriage Equality Law, enacted in 2011, makes clear that same-sex and different-sex marriages are to be treated the same, a point driven home as a matter of constitutional rights by the U.S. Supreme Court’s 2015 Obergefell decision.
New York courts have several times used the doctrine of “comity” to rule that somebody who is a parent of a child under the law of another state will be recognized as their parent in New York, despite the precedent of the Alison D. case. Under California law, when a registered domestic partner gives birth to a child her partner is presumed to be a legal parent of the child and, of course, when a married woman gives birth to a child in California, her legal spouse is presumptively the child’s parent. The family court found that both of these presumptions applied in this case, and the Appellate Division agreed.
The court rejected Farah’s argument that failure to comply with the statutory donor insemination procedures of the two states would bar Kelly from parental status, pointing out that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. These laws provide that partners of birth mothers who comply with the statutory requirements will obtain parental status, but don’t explicitly provide that failure to comply will forfeit any claim to parental status. The general rule for recognition of parental status in New York for a child born in a sister state is comity unless there is a strong public policy reason for New York to refuse to recognize the status. California law clearly provides that a child born to a woman who has a registered domestic partner is also the child of the partner, and similarly, of course, that a child born to a married woman is the child of her spouse, and New York courts have extended comity in such situations in the past. In this case, since Kelly was listed on both birth certificates and the children were given her surname, it is clear that the parties intended that she be a parent of both children when they were born.
The Appellate Division also upheld Judge Poulos’s decision to dismiss Farah’s paternity petition. Poulos determined that Farah filed the “in an attempt to terminate Kelly S.’s parental rights.” But this would be inconsistent with the ultimate factual findings in the case. Wrote Justice Roman, “The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state. Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013. Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”
Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppague, N.Y. Farah Martin is represented by Sari M. Friedman of Garden City. Regina M. Stanton was appointed by the court to represent the interest of the children. Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.” Steagall told Newsday, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”
The New York Court of Appeals will hear oral argument on June 2, 2016, in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals gave leave to appeal a ruling by the Buffalo-based Appellate Division, 4th Department, Matter of Barone v. Chapman-Cleland, 129 A.D. 3d 1578, 10 N.Y.S.3d 380 (June 19, 2015), which had matter-of-factly applied the Alison D. precedent to hold that a lesbian co-parent lacked standing to seek custody and visitation with her son. The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, in Debra H. v. Janice R., 14 N.Y.3d 576, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one appointee by former Republican Governor George Pataki on the bench, an almost complete turnover of membership since Alison D. was last affirmed, so it is highly possible that the court granted leave to appeal with a view to overruling the obsolete precedent.