Kelly S. v. Farah M.

• Decision Date: 06 April 2016
• Citation: 139 A.D.3d 90,28 N.Y.S.3d 714
• Parties: In the Matter of KELLY S. (Anonymous), respondent, v. FARAH M. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 90

28 N.Y.S.3d 714

In the Matter of KELLY S. (Anonymous), respondent,

v.FARAH M. (Anonymous), appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 6, 2016.

Friedman & Friedman, Garden City, N.Y. (Sari M. Friedman and Latonia Early of counsel), for appellant.

Christopher J. Chimeri, Hauppauge, N.Y. (Douglas Byrne of counsel), for respondent.

Regina M. Stanton, Port Jefferson, N.Y., attorney for the children.

JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

ROMAN, J.

Kelly S. and Farah M. entered into a registered domestic partnership in California in 2004, and were legally married in California in 2008. During their time together, Farah M. conceived two children through artificial insemination, and those children were born in March 2007 and April 2009, respectively. The parties relocated to New York and later separated. Kelly S. moved to Arizona, while Farah M. remained in New York with the children. On this appeal, we primarily consider whether, as a matter of comity, the Family Court properly recognized Kelly S. as a parent of the children under New York law, thereby conferring standing for her to seek visitation with the children, notwithstanding the parties' failure to comply with California's artificial insemination law.

For the reasons that follow, we answer this question in the affirmative.

Factual and Procedural Background

Kelly S. and Farah M. began a romantic relationship in or around March 2000. In January 2004, the parties entered into a registered domestic partnership in California. In 2004, the parties decided to start a family, and asked nonparty Anthony S., a close friend of both parties, if he would be willing to donate his sperm. Anthony S. agreed to donate his sperm, and Kelly S. became pregnant through artificial insemination. In January 2005, Kelly S. gave birth to I.S., who is not a subject of this appeal. Farah M. legally adopted I.S.

The parties subsequently decided to have another child, and Anthony S. again agreed to be the sperm donor. On this occasion, Farah M. became pregnant by artificial insemination. The artificial insemination procedure was performed at home by Farah M., rather than by a physician, and the parties did not draft or sign a written consent agreement. On March 24, 2007, Farah M. gave birth to the subject child Z.S. The child was given Kelly S.'s surname, and Kelly S. was listed as a parent on the child's birth certificate.

In August 2008, the parties were legally married in California. That same year, they decided to have a third child, and Farah M. became pregnant through artificial insemination, with Anthony S. once again donating the sperm. The artificial insemination procedure was again performed at home by Farah M., and not by a physician. Farah M. gave birth to the subject child E.S. on April 27, 2009. As with Z.S., E.S. was given Kelly S.'s surname, and Kelly S. was listed as a parent on the child's birth certificate.

In or around 2012, the parties relocated with the three children to New York. The parties subsequently separated, and Kelly S. moved to Arizona in or around the summer of 2013, while Farah M. remained in New York with the three children.

In May 2014, Kelly S. filed a visitation petition in the Family Court, Suffolk County, seeking visitation with Z.S. and E.S. The petition alleged that Kelly S. was the mother of the subject children and that the parties were legally married in California in 2008. In addition, the petition alleged that the children were given Kelly S.'s surname and that Kelly S. was listed on the children's birth certificates. The petition further alleged that Kelly S. helped raise the children until the parties separated.

In August 2014, Farah M. moved to dismiss Kelly S.'s visitation petition on the ground that Kelly S. lacked standing to seek parenting time with the subject children. In the alternative, she moved to schedule a hearing on the issue of standing, and to join the subject children's biological father, Anthony S., as an additional necessary party to the proceeding. Farah M. also filed paternity petitions against Anthony S. seeking to establish his paternity of Z.S. and E.S. In support of the motion, Farah M. pointed out that, while Kelly S. alleged that she was the mother of both children pursuant to a legal marriage in California, Z.S. was actually born prior to the parties' marriage. Since Z.S. was born prior to the marriage, Farah M. thus maintained that Kelly S. clearly lacked standing to seek parenting time with him because she was not his biological parent and had never legally adopted him. With respect to E.S., who was born during the parties' marriage, Farah M. argued that Kelly S. could not be deemed a parent under New York's artificial insemination statute because E.S. was conceived by means of an artificial insemination procedure performed by Farah M., not by a physician, and the parties did not draft or execute a written consent agreement authorizing the procedure, as required by Domestic Relations Law § 73.

Farah M. further argued that any presumption that E.S. was the child of both parties was rebutted by the fact that the sperm was provided, not by an anonymous donor, but by an individual who subsequently maintained a parental relationship with E.S. Lastly, Farah M. argued that if the visitation petition was not dismissed, then Anthony S. should be named as an additional necessary party to the proceeding, since he had not abandoned or otherwise surrendered his parental rights, and he continued to maintain a father-child relationship with the subject children.

In a supporting affidavit, Farah M. alleged that Anthony S., in addition to being the sperm donor, had acknowledged paternity of both Z.S. and E.S. by engaging in a parental relationship with them. In this regard, Farah M. alleged that Anthony S. had regularly spoken with the children over the telephone since they were toddlers, sent them cards signed "Daddy," given them birthday gifts, engaged in sleepovers, and accepted Father's Day gifts from them. Further, Farah M. averred that both children knew Anthony S. as their father, and referred to him as "Daddy." Farah M. also alleged that Anthony S. referred to both Z.S. and E.S. as his children, and that E.S. drew family pictures which included him.

In opposition to the motion, Kelly S. argued that, in view of the well-established presumption that a child born to a marriage is the product of that marriage, Kelly S. must be recognized as a parent of E.S., who was born after the parties were legally married. As to Z.S., Kelly S. argued that courts have applied the doctrine of equitable estoppel in determining parentage, and that it was in the best interest of Z.S. for Kelly S. to be recognized as his parent.

In her supporting affidavit, Kelly S. averred that she was supportive at all times and assisted with both artificial insemination procedures. She also asserted that, from birth to the present, all of the parties' children "look at [her] as their mother and affectionately call [her] ‘Mama.’ "

The attorney for the children also opposed Farah M.'s motion. Counsel argued that the motion should be denied in its entirety as to E.S, since that child was born during the parties' marriage. With respect to Z.S., the attorney for the children requested a hearing to determine whether Kelly S. had standing to seek visitation. The attorney for the children argued that a hearing was necessary to determine whether Farah M. should be equitably estopped from disputing Kelly S.'s status as a parent of Z.S.

In reply, Farah M. argued, with respect to Z.S., that the doctrine of equitable estoppel was inapplicable. Farah M. noted that Kelly S. had the opportunity to adopt the subject children, but chose not to do so, and that the children had a relationship with their biological father. In addition, Farah M. reiterated her contention that Kelly S. did not have standing to seek visitation with E.S., inasmuch as the parties did not comply with the provisions of Domestic Relations Law § 73, and the sperm was provided by a known donor.

The Order Appealed From

In an order dated March 13, 2015, the Family Court denied Farah M.'s motion to dismiss the visitation petition on the ground of lack of standing, concluding that since both children were born when the parties were registered domestic partners or married, Kelly S. was presumed to be a parent under California law, and that presumption should be afforded comity. The court also, sua sponte, dismissed the paternity petitions filed by Farah M. After discussing the facts of the case and the doctrine of comity, the court determined that "the parties' decade long history and residence in California," and the Court of Appeals decision in Debra H. v. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d 184, warranted the application of California law to this matter. The court noted that the parties did not comply with the artificial insemination laws of either California or New York, and, therefore, those statutes did not provide a basis for treating Kelly S. as a parent. Nevertheless, after analyzing the presumption of parentage arising under California law for children born of a marriage (see Cal Fam Code § 7611 ), as well as the California law for registered domestic partnerships (see Cal Fam Code § 297.5 [d] ), the court determined that when Z.S. was born in 2007, while the parties were living together in a registered domestic partnership, California law afforded them the same rights and obligations with respect to Z.S. as if they were married spouses. The court concluded that Kelly S. was presumed to be the parent of both Z.S. and E.S. pursuant to California Family Code § 7611(a).

Turning to the paternity petitions, the Family Court concluded that Farah M.'s "belated and self serving concerns over the children's biological origins" were motivated "solely [by] the apparent acrimony between the parties,"...