Newhampshire v. Jesus R. & Brenda S.

Decision Date20 March 2020
Docket Number1041,CAF 18–02251
Citation122 N.Y.S.3d 461,183 A.D.3d 106
Parties In the Matter of TOMEKA N.H., Petitioner–Appellant, v. JESUS R. and Brenda S., Respondents–Respondents. Maureen N. Polen, Esq., Attorney for the Child, Appellant.
CourtNew York Supreme Court — Appellate Division

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Opinion by CENTRA , J.P.:

The issue in this case is whether petitioner has standing to seek joint custody of, and visitation with, the subject child, which would result in a tri-custodial arrangement among respondents, who are the biological mother and the biological father of the child, and petitioner. We conclude that petitioner cannot establish standing under Domestic Relations Law § 70(a) in such circumstances.


Petitioner and respondent mother were in a relationship and became engaged in 2009, but they never married because, at that time, same-sex marriage was not recognized under New York law. Their romantic relationship ended amicably in early 2010, and petitioner moved out of their residence. That summer, the mother engaged in sexual relations with respondent father, resulting in her becoming pregnant with the child who is the subject of this proceeding. According to petitioner and the mother, the father wanted nothing to do with the child, so the mother asked petitioner to raise the child with her, and petitioner agreed. The father, on the other hand, testified that he was not certain whether he was the father of the unborn child, but he concededly did nothing to establish his status as the father. Petitioner moved back in with the mother in September 2010 and helped her prepare for the baby's arrival. Petitioner and the mother also became intimate once again. Petitioner was at the hospital when the baby was born. She helped cut the umbilical cord and helped choose the child's name, and the child was given a hyphenated last name that combined the last names of the mother and petitioner. Petitioner took on the role of a parent when she and the mother took the child home, but petitioner moved out of the mother's home in the spring of 2012 when their romantic relationship again ended. Nevertheless, petitioner continued to regularly care for the child at petitioner's home.

Meanwhile, the father saw the child once or twice during the first year and a half of her life. In June 2013, the mother filed a paternity petition against the father, and Family Court issued an order of filiation in December 2013. Since then, there have been orders of custody and visitation between the mother and the father entered upon consent, whereby the mother and the father have joint custody, the mother has primary residency of the child, and the father has visitation with the child. It is undisputed that, since 2014, the father has visited with the child. The most recent order of custody gives the mother and the father shared equal access with the child.

In March 2017, petitioner filed a petition seeking an order granting her visitation with the child and, in October 2017, she filed an amended petition seeking custody and visitation. Petitioner argued that the doctrine of equitable estoppel gave her standing to seek custody and visitation and that it was in the best interests of the child for her to have custody and visitation. Petitioner did not seek to sever the father's rights to the child. Instead, she sought "tri-custody." The mother supported the amended petition, while noting that she did not wish to terminate the father's rights. The Attorney for the Child (AFC) also supported the amended petition, noting that the child had a very strong relationship with petitioner and viewed her as a parent.

The father moved to dismiss the amended petition for lack of standing, and petitioner, the mother, and the AFC all opposed the motion. After holding a hearing on the issue of standing, the court granted the motion and dismissed the "petition and amended petition" ( Matter of T.H. v. J.R., 61 Misc.3d 775, 788, 84 N.Y.S.3d 676 [Fam. Ct., Monroe County 2018] ). Petitioner and the AFC now appeal. We affirm, but for reasons different from those stated by the court.

Analysis and Discussion


To obtain custody or visitation with a child, a party must establish standing; it is not enough to assert that such custody or visitation would be in the best interests of the child. The only ways to establish such standing are: (1) pursuant to Domestic Relations Law § 70 as a parent; (2) pursuant to Domestic Relations Law § 71 as a sibling; (3) pursuant to Domestic Relations Law § 72 as a grandparent; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 549, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976) ). Petitioner is not a sibling or a grandparent, and she does not allege extraordinary circumstances; thus, only Domestic Relations Law § 70 is applicable here.

Domestic Relations Law § 70(a) provides as follows:

"Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly" (emphasis added).

In Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 656–657, 569 N.Y.S.2d 586, 572 N.E.2d 27 (1991) ), the Court of Appeals held that a "parent" within the meaning of Domestic Relations Law § 70(a) meant only a biological or adoptive parent. In 2016, however, the Court of Appeals overruled Alison D. and held that, "where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70" ( Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 14, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016] ). The Court noted that the statute did not define "parent," leaving it to be defined by the courts ( id. at 18, 39 N.Y.S.3d 89, 61 N.E.3d 488 ), and that the Court's definition of that term in Alison D. was "needlessly narrow" ( id. at 24, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). In each of the two cases before the Court in Brooke S.B. , the petitioner alleged that "the parties [had] entered into a pre-conception agreement to conceive and raise a child as co-parents" ( id. at 27, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). The Court held that those allegations, if proven by clear and convincing evidence, were sufficient for the petitioners to establish standing (see id. ). The Court further held:

"Inasmuch as the conception test applies here, we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement. We simply conclude that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Whether a partner without such an agreement can establish standing and, if so, what factors a petitioner must establish to achieve standing based on equitable estoppel are matters left for another day, upon a different record" ( id. at 28, 39 N.Y.S.3d 89, 61 N.E.3d 488 ).

Petitioner and the AFC argue that the facts of this case are a natural extension of the reasoning in Brooke S.B. They argue that, although there was no pre-conception agreement, there was a post-conception agreement for petitioner to raise the child as a parent. We conclude, however, that petitioner cannot establish standing because Domestic Relations Law § 70(a) simply does not contemplate a court-ordered tri-custodial arrangement.

The wording of Domestic Relations Law § 70(a) is clear and straightforward. It states that "either" parent may seek custody or visitation (id. ). It is a well-settled principle of statutory construction that "[w]ords of ordinary import used in a statute are to be given their usual and commonly understood meaning" (McKinney's Cons Laws of NY, Book 1, Statutes § 232; see Rosner v. Metropolitan Prop. & Liab. Ins. Co., 96 N.Y.2d 475, 479–480, 729 N.Y.S.2d 658, 754 N.E.2d 760 [2001] ; Matter of Village of Chestnut Ridge v. Howard, 92 N.Y.2d 718, 723, 685 N.Y.S.2d 915, 708 N.E.2d 988 [1999] ). The common dictionary definition of "either" when used as an adjective has two senses, i.e., "being the one and the other of two " and "being the one or the other of two " (Merriam–Webster Online Dictionary, either [] [emphasis added] ). In addition, when the Court of Appeals stated in Brooke S.B. that section 70 does not define the critical term "parent," it added the following in a footnote: "We note that by the use of the term ‘either,’ the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time" ( Brooke S.B., 28 N.Y.3d at 18 n 3, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). In our view, the clear wording of section 70(a), which was expressly recognized by the Court of Appeals, precludes any relief to petitioner here because there are already two parents: the mother and the father. Under section 70(a), there simply can be no more. We are therefore in agreement with the Third Department's recent decision determining that to allow three...

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