Alison D. v. Virginia M.

• Decision Date: 02 March 1990
• Citation: 552 N.Y.S.2d 321,155 A.D.2d 11
• Parties: , 58 USLW 2548 In the Matter of ALISON D. (Anonymous), Appellant, v. VIRGINIA M. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 321

552 N.Y.S.2d 321

155 A.D.2d 11, 58 USLW 2548

In the Matter of ALISON D. (Anonymous), Appellant, v. VIRGINIA M. (Anonymous), Respondent.

Supreme Court, Appellate Division,

Second Department.

March 2, 1990.

Beveridge & Diamond, P.C., New York City (Debra L. Rothberg, of counsel), and Lambda Legal Defense & Education Fund, Inc., New York City (Paula L. Ettelbrick, of counsel), for appellant (one brief filed).

Anthony G. Maccarini, Carmel, for respondent.

American Civil Liberties Union Foundation, New York City (William B. Rubenstein and Nan D. Hunter, of counsel), New York Civil Liberties Union Foundation, New York City (Robert Levy, of counsel), amici curiae.

Janet E. Schomer and Susan R. Keith, New York City, for the Gay and Lesbian Parents Coalition International, Center Kids, WS, VC, KG and AR, amici curiae.

Before MOLLEN, P.J., and MANGANO, KUNZEMAN and KOOPER, JJ.

PER CURIAM.

The petitioner Alison D. and the respondent Virginia M. became involved in a relationship in September 1977 and began living together in March 1978. In 1980, they decided to raise a family together and agreed that the respondent would be artificially inseminated. They agreed to share jointly all rights and responsibilities for the child as "co-parents". In July 1981 the respondent gave birth to a baby boy. Before, during, and after the pregnancy, the petitioner and respondent shared the household and child support expenses. During the first two years following the birth, the petitioner and the respondent jointly made decisions regarding the child. The petitioner assisted in caring for the child, transported him to school, and attended to his medical needs.

In November 1983 when the child was two years and four months old, the relationship between the petitioner and the respondent ended and the petitioner moved out of the home which they had shared prior to their separation. A visitation schedule was mutually agreed upon, whereby the petitioner saw the child a few times a week. This regular visitation continued until 1986, at which point the respondent began limiting the petitioner's visits with the child. The petitioner moved to Ireland in July 1987 for the purpose of career advancement, and, thereafter, the respondent terminated all contact between the petitioner and the child.

In the instant proceeding seeking visitation, the petitioner alleges that she stands in loco parentis to the child, and therefore must be considered a "parent" within the meaning of Domestic Relations Law § 70. Accordingly, the petitioner argues that she has standing under Domestic Relations Law § 70 to demand a hearing as to whether her visitation with the child would be in the latter's best interests.

The Supreme Court, relying on the Court of Appeals decision in Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 517 N.Y.S.2d 932, 511 N.E.2d 75, dismissed the petition, stating:

"the biological parent of a child is the parent within the meaning of the statute.

"The court declines to adopt the definition of a parent as someone standing in loco parentis".

We agree with the Supreme Court's determination.

Domestic Relations Law § 70 provides, inter alia, that "either parent" has standing to apply for a writ of habeas corpus to determine the issue of child custody. This statute has also been construed to grant standing to "either parent" to apply for a writ of habeas corpus to determine the issue of visitation rights (see, Matter of Pierson, 126 A.D.2d 729, 511 N.Y.S.2d 131; Scheinkman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § 70:5, at 248). Once standing is conferred, the court determines the issues of custody and visitation based on the best interest of the child (Domestic Relations Law § 70).

Although Domestic Relations Law § 70 does not explicitly define the term "parent", we are of the view, based on applicable precedent, that the petitioner does not come within the meaning of that term.

In Matter of Ronald FF. v. Cindy GG., 117 A.D.2d 332, 502 N.Y.S.2d 823, revd. 70 N.Y.2d 141, 517 N.Y.S.2d 932, 511 N.E.2d 75, supra ), the petitioner was the male paramour of the female respondent, but was not the father of the respondent's child. The petitioner and the respondent lived together during most of the respondent's pregnancy, and for about a year after the child's birth, but eventually separated. In October 1983 upon learning of the respondent's intent to move to Texas with the child, the petitioner started a proceeding seeking visitation rights. After a hearing, the Family Court concluded that " 'in the present circumstances, it is in [the child's] best interest to continue his relationship with [petitioner] by means of regular visitation' " (Matter of Ronald FF. v. Cindy GG., supra, 70 N.Y.2d at 143, 517 N.Y.S.2d 932, 511 N.E.2d 75). The Family Court, citing Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, found " 'the circumstances in the instant case sufficiently extraordinary to warrant consideration of petitioner's request for visitation in light of the child's best interests despite petitioner's lack of paternal ties' " (Matter of Ronald FF. v. Cindy GG., supra, 70 N.Y.2d at 143, 517 N.Y.S.2d 932, 511 N.E.2d 75).

The Appellate Division, Third Department (Matter of Ronald FF. v. Cindy GG., 117 A.D.2d 332, 333-334, 502 N.Y.S.2d 823, supra ), affirmed the Family Court's holding granting the petitioner visitation rights, stating:

"Child custody disputes between a parent and nonparent are to be resolved in accordance with the principles announced in Matter of Bennett v. Jeffreys (40 NY2d 543 [387 N.Y.S.2d 821, 356 N.E.2d 277], which permits intrusion upon parental control provided it is first demonstrated that extraordinary circumstances drastically affecting the welfare of the child exist. If that prerequisite is satisfied, courts may then proceed to a consideration of the best interest of the child (supra, at p 549 [387 N.Y.S.2d 821, 356 N.E.2d 277]; see, Matter of Merritt v Way, 58 NY2d 850, 853 [460 N.Y.S.2d 20, 446 N.E.2d 776]; Matter of Callahan v Denton, 114 AD2d 663, 664 . Family Court found the threshold criteria met by evidence that respondent's conduct encouraged and condoned the father-son relationship which developed between petitioner and Chad. It is noteworthy in this regard that the parties cohabited during many months of the infant's first two years; that respondent held petitioner out as Chad's father to their friends and relatives; that Chad calls petitioner 'daddy'; that petitioner selected the infant's first name and petitioner's surname is listed on Chad's birth certificate; and that petitioner's association with the infant has been constant and devoted. The record amply supports the conclusion that the familial relationship and attachment between Chad and petitioner, his nonbiological father, is an extraordinary circumstance warranting inquiry into the infant's best interest (see, Matter of Boyles v Boyles, 95 AD2d 95 ."

The Court of Appeals reversed and held that the petitioner's habeas corpus proceeding seeking visitation rights had to be denied "in toto" (Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 145, 517 N.Y.S.2d 932, 511 N.E.2d 75, supra ). In so holding, the Court of Appeals stated (Matter of Ronald FF. v. Cindy GG., supra, at 142, 144-145, 517 N.Y.S.2d 932, 511 N.E.2d 75):

"Visitation rights may not be granted on the authority of the Matter of Bennett v Jeffreys (40 NY2d 543 [387 N.Y.S.2d 821, 356 N.E.2d 277] extraordinary circumstances rule, to a biological stranger where the child * * * is properly in the custody of his mother * * * Respondent is conceded to be a fit mother, a conclusion supported by the evidence before the lower courts, and she has chosen to resist the legal effort to judicially confer visitation rights on petitioner. Under these key premises, the Bennett rule is inapplicable and unavailable. Nothing in this record establishes any basis for interfering with the mother's full custodial rights, which include the right to determine who may or may not associate with her child.

* * * * * *

"In this case, no one questions the mother's fitness to raise her child and no one seeks to change custody. Thus, the Bennett rule has no application to the situation before us, and our inquiry is directed solely to the State's power to interfere with the right of this mother to choose those with whom her child associates. The State may not interfere with that fundamental right unless it shows some compelling State purpose which furthers the child's best interests (see, Stanley v Illinois, 405 US 645, 651 [92 S.Ct. 1208, 1212, 31 L.Ed.2d 551]. No such compelling purposes are present in this case".

It is true, as the dissent suggests, that the petitioner's argument in Matter of Ronald FF. v. Cindy GG. (supra), which was rejected by the Court of Appeals, and the argument of the petitioner in the instant proceeding have different labels, to wit, the petitioner in Matter of Ronald FF. v. Cindy GG. (supra), relied on the doctrine of "extraordinary circumstances" while the petitioner in the instant case relies on the doctrine of "in loco parentis". Nevertheless, it is readily apparent from a close analysis of these two arguments that they do not, in their factual underpinnings, or legal analyses differ in any material way. Accordingly, the petitioner's theory in the instant proceeding must also be rejected (see, Matter of Ronald FF. v. Cindy GG., supra; see also, Matter of Jennifer, 142 Misc.2d 912, 913, 538 N.Y.S.2d 915; cf., Matter of Dehar v. Dehar, 134 A.D.2d 656, 521 N.Y.S.2d 335).

The dissent relies heavily on the holding of Court of Appeals in Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49 for its conclusion that the petitioner should be considered a "parent" and be afforded standing in the instant proceeding. This reliance is totally misplaced. In Braschi v. Stahl Assoc. Co. (s...