CHILD CUSTODY - DETERMINATION OF PARENTHOOD IN NON-TRADITIONAL FAMILIES

This is from the NYLJ Case Digest Summary - The Appellate Division remanded this case to consider equitably estopping the biological mother from denying her former partner's parentage of her son. The former partner wanted access time with AH pendente lite and relied on court's prior finding interim access was warranted to maintain consistency with AH's experience with her. Here, the court addressed the interim access petition in view of AH's best interest "despite absence of specific statutory authority or applicable case law, directing parties to appear for a framed issue hearing" noting that "ultimate determination of parenthood would be predicated on AH's best interests, setting out criteria for consideration...." 

K.G. v. C.H., NYLJ 2/4/19, Date filed: 2019-01-18, Court: Supreme Court, New York, Judge: Justice Frank Nervo, Case Number: 309154/2016:

"The parties urged this Court to establish criteria for equitable estoppel in order that any appointed forensic expert, as well as all others concerned with the orderly progression of this matter, be properly guided. The elements of equitable estoppel are established by this Court as set forth below. Prior to the date of this order, the parties had been provided the opportunity to object to any or all elements of these criteria on any ground appropriate, particularly in view of objections previously asserted that disputes of this nature present an inherent heightened legal barrier to nontraditional family members. Those objections were found to be entirely without merit by the Appellate Division (163 A.D.3d 67, 78-79). This Court maintains the concern that no criteria here established present any heightened legal barrier, or any unique challenge or unique difficulty whatsoever for members of LGBTQ or other nontraditional families. To date, neither party has presented any objection, and the Court remains available to address any objection which may come to light as this matter proceeds. A number of similar petitions are currently in various stages of litigation within and without the State of New York, and a number of courts are contemporaneously establishing criteria for equitable estoppel as a result of the different records made on different days (as presciently predicted by the Court in Brooke S.B. v. Elizabeth A.D.D., 28 NY3d 1, 28). Therefore, for purposes of distinct reference and clarity, the following criteria shall be designated:

JUDGE NERVO’s CRITERIA FOR EQUITABLE ESTOPPEL

The ultimate determination of parenthood shall be predicated upon the best interests of the child. In consideration thereof, the court will determine and consider the extent to which the petitioner, by clear and convincing evidence:

(1) undertook full and permanent fiscal responsibilities for the child without expectation of financial compensation;

(2) resided with the child;

(3) affirmatively held out the child as her own, or what objective observation of the relationship by others in their community would demonstrate;

(4) otherwise engaged in consistent caretaking of the child;

(5) had been in a parental role for a length of time sufficient to have established with the child a bonded, dependent, parental relationship;

(6) is recognized or acknowledged as parental by the child;

(7) has a close and deep emotional bond with the child;

(8) bonded a dependent relationship with the child, supported, or facilitated, affirmatively or impliedly, by the legal parent;

(9) engaged in decision-making with the legal parent with respect to major issues concerning the child including, but not limited to, health, welfare, education, and any participation in organized religion;

(10) is or was part of any formalized relationship with the legal parent and/or the child; and

(11) how the abrupt, or continued, termination from any and all contact with the petitioner has, or would continue to, adversely affect the child, if at all."