Who’s A Parent? The Appellate Division Is Divided on the Answer

By Joseph R. Williams

April 6, 2021

Who’s A Parent? The Appellate Division Is Divided on the Answer


By Joseph R. Williams

Question: How many parents can one child have? Currently, the answer depends on where in New York your family is being created. The Appellate Division appears to be of several minds on the matter – the Fourth Department recently ruled that there can only be two parents – no matter what – but other Departments have disagreed, authorizing and approving “tri-parentage” arrangements wherein three adults have been deemed legal parents of a child. This has created a split within the Appellate Division, resulting in the application of different standards depending on where in New York you are filing your petition.

With the recent passage of the Child-Parent Security Act (CPSA), New Yorkers now have more family formation options available to them than ever before. And with the creation of streamlined proceedings for establishing parentage for children born through assisted reproduction, the CPSA has made it easier than ever for New York families (especially LGBTQ families) to protect and secure their parental status. With the paradigm shifting from a focus on biology to a focus on parental intent, parents are able to build their families how they want to.

Without question, two men can now both be parents to a child, as can two women. But what about two men and a woman? Or two women and a man? Under what circumstances, if any, can a child have more than two legal parents?

That is exactly the question that was recently addressed by the Fourth Department in Matter of Tomeka N.H. v. Jesus R.[1]

Facts of the Case

In Tomeka, the biological mother became pregnant by the biological father. Within weeks of conception (while the biological mother was still pregnant), the biological father told her that he wanted nothing to do with the child. Shortly thereafter, the biological mother began a romantic relationship with Tomeka. The biological mother and Tomeka agreed, prior to the child’s birth, that they would raise and parent the child together.

Thereafter, Tomeka acted in every capacity as a parent. Tomeka attended ultrasound appointments, put together the nursery, attended the child’s delivery, cut the child’s umbilical cord, and held the child immediately upon birth. They named the child after one of Tomeka’s family members and hyphenated her last name to reflect the last names of both mothers. They resided together as a family and shared all parenting responsibilities, including feeding, bathing, changing, nurturing, and playing with the child. Tomeka attended the child’s medical appointments, parent-teacher conferences, school dances, and taught the child how to ride a bike. Meanwhile, the biological father was never in the picture and even denied he was the child’s father, on the record, during a court proceeding.

When the child was 2, Tomeka sought to formally adopt her. Upon receiving notice of the adoption (and for the first time in the child’s life), the biological father asserted paternity and requested a DNA test. An order of filiation was issued, and the biological father was legally established as the child’s second parent (in addition to the biological mother). Despite this, Tomeka continued to act as a parent for the next five years, with the consent and acquiescence of both biological parents.

However, when Tomeka filed for custody when the child was 6 years old, her petition was dismissed by the Monroe County Family Court, who held that she did not have standing as a parent to seek custody. Tomeka and the Attorney for the Child appealed. The Attorney for the Child reported that the child considered Tomeka a parent and wanted her to remain a constant presence in her life.  Shortly after the Family Court decision, Tomeka and the biological mother ended their relationship and Tomeka was no longer allowed to see the child.

The Appeal

On March 20, 2020, the Fourth Department affirmed Family Court’s decision, holding that Tomeka could not possibly have standing as a parent because Domestic Relations Law § 70, which authorizes “either parent” to file for custody, “simply does not contemplate a court-ordered tri-custodial arrangement.”[2] In other words, according to the Fourth Department, a child can never have three legal parents – the law simply does not allow it.

The Fourth Department cited to the famous Court of Appeals case Brooke S.B. v. Allison A.C.C.[3] That case, which vastly expanded parentage law for same-sex families, bestowed parental rights upon non-genetic, non-adoptive parents who entered into a preconception agreement with a gestating parent to conceive and parent a child together.[4]

However, the Court in Brooke S.B. specifically did not opine on what would happen if a couple entered into a post-conception (rather than pre-conception) parentage agreement – as the parties in the Tomeka case did. In fact, the Court said: “Whether a partner without [a preconception agreement] can establish standing and, if so, what factors a petitioner must establish to achieve standing . . . . are matters left for another day, upon a different record.”[5].

That left the door wide open for the Fourth Department to analyze this issue in Tomeka and make some good caselaw regarding establishing parentage based on the intent of the parties and the best interests of the child. Unfortunately, that is not what happened. Instead, the Fourth Department zeroed in on a footnote in Brooke S.B. that states that the language of DRL § 70 (which authorizes “either” parent to file for custody) “clearly limits a child to two parents, and no more than two, at any given time.”[6] Applying this, the Fourth Department held that, because the child already had two biological parents, “there simply can be no more,”[7] and Tomeka was out of luck.

This footnote, however, merely constitutes dicta from the Court of Appeals – not the rule of law created by the case – and the Court did not directly address (or even consider) the question of tri-parentage in Brooke S.B. In the few years since Brooke was issued, this little footnote full of dicta has been the source of much litigation and much confusion, and has been applied (or not applied) with drastically differing results statewide.

Inconsistent Application

While the Fourth Department seems to interpret this dicta as gospel in Tomeka, the Second Department has taken a different (and more sensible approach) in the Frank G. case.[8] In that case, a biological father, biological mother, and the biological father’s same-sex partner were all afforded standing by the Second Department, thus creating a tri-parentage arrangement.[9]

There are also decisions from the New York County Family Court (in the First Department)[10] and the Suffolk[11] and Westchester[12] County Supreme Courts (in the Second Department) declaring three parties to be legal parents of a child. Specifically, the Suffolk County Supreme Court has held that “tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B.,”[13] and the New York County Family Court has held that “[t]he parent-child relationships fostered by children . . . who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.”[14]

At least two courts in the Third Department have approved three-parent adoptions resulting in the child having three legal parents (and the Department of Health has even issued amended birth certificates with all three parents listed as the child’s parents).[15] Clearly, the Tomeka decision creates a stark division between the Appellate Departments.

Unfortunately, in a decision issued on March 29, 2021, the Court of Appeals declined to grant leave to appeal in the Tomeka case, allowing this Department split to stand and declining to address the inconsistency created by the Court’s footnote in the Brooke S.B. decision.

Impact on New York Families

It is important to occasionally take off our “lawyer hats” and remember that these are not just cases – these are real families. These are real children who are growing up with the love and support of three parents. However, given its holding in Tomeka, the Fourth Department has now affirmatively denounced such relationships and declared that they cannot be legally recognized. So, putting our lawyer hats back on, what happens to these families? What happens to their legal relationships as parents and children? And now that the Court of Appeals has declined to weigh in on this issue, does that mean that families in the First and Second Departments have different or additional parental rights than those in the Fourth? Without question, a family created in Buffalo should be treated and regarded the same as a family created in Long Island; however, as the caselaw currently stands, that is not the case at all.

Furthermore, this ruling from the Fourth Department has the very real effect of creating classes of parentage (at least for parents in the Fourth Department). If a biological or adoptive parent will always be treated as a legal parent (as suggested by the Court in Tomeka), those are “first class” parents. That means that non-biological, non-adoptive parents (like Tomeka) are relegated to “second class” status – only able to establish parentage so long as two others haven’t beaten them to it. The Fourth Department’s decision creates a “race to the courthouse” to be the first two parties declared to be the legal parents. If Tomeka had attempted to establish parentage (i.e., through estoppel or based on parental intent) before the biological father sought a DNA test, she may very well have been declared to be a parent after all. At the very least, she would not have been denied standing based on the child already having two legal parents.

Here’s an example from a recent Second Department case that illustrates the point: In Joseph O. v. Danielle B., two married women had a child together using a sperm donor.[16] Although both mothers were deemed legal parents pursuant to the marital presumption and the principles established in Brooke S.B., the sperm donor later sought to be declared the child’s father. Rather than dismissing the sperm donor’s petition (even though there were already two legal parents), the court scheduled a hearing on equitable estoppel. Although the sperm donor ultimately lost, if the judge had ruled differently at that hearing, the sperm donor could very well have been declared to be the child’s father. If there are only two parents allowed (as the Fourth Department has held), who gets parental rights in a case like this? The biological father/sperm donor who has no established relationship with the child, or the person who shares a close parent-child relationship with the child whose parentage was established by some other, non-biological, means?

If the court selects the biological father (as it did in Tomeka), that sends a very clear message that Tomeka and all other non-biological, non-adoptive parents are merely “second class” parents in the eyes of the law – a decision that will disproportionately impact LGBTQ families.

We contacted the petitioner in this case – Tomeka herself – and here’s what she had to say:

“This has taken quite a toll on me and my daughter . . . I have suffered greatly waiting to find out whether or not I will be able to see my daughter again. Birthdays pass, holidays pass, life is passing us by . . . these are not just dockets, but actual people and children that are suffering. My life and my daughter’s life are forever changed and impacted by this situation.”

Final Thoughts

The question remains: does that dicta in the Brooke S.B. decision mean that under no circumstances a child can have more than two parents? Would such a principle be consistent with recent legislative intent for parentage to be established based on the intent of the parties, rather than simply based on biology? Would this approach impermissibly categorize parents into “tiers” of parentage with unequal parental rights? And is that type of bright-line rule consistent with our state’s policy of making custody and parentage determinations based upon the “best interests” of children?

Unfortunately, the Court of Appeals has passed on its opportunity to answer any of these difficult questions, leaving it to family law attorneys to make sense of this conflicting precedent and to continue the fight for parentage equality on behalf of our clients.

Joseph R. Williams, an attorney with the Albany law firm Copps DiPaola Silverman, practices primarily in adoption, assisted reproduction and surrogacy law, and was actively involved in the drafting and lobbying for the CPSA. He is also the cofounder and director of surrogate services for the New York Surrogacy Center, a surrogacy matching program working with prospective surrogates and intended parents.

[1]. 183 A.D.3d 106, 122 N.Y.S.3d 461 (4th Dep’t 2020).

[2]. Id.

[3]. 28 N.Y.3d 1 (2016).

[4]. For example, if a same-sex female couple decided to become pregnant using a sperm donor, both mothers would be recognized as parents under the principles established in Brooke S.B.

[5]. 28 N.Y.3d at 28.

[6]. Id. at 18, n.3.

[7]. Tomeka N.H., 183 A.D.3d at 111.

[8]. See Frank G. v. Renee P.-F.., 142 A.D.3d 928, 37 N.Y.S.3d 155 (2d Dep’t 2016); In re Giavonna F.P.-G., 142 A.D.3d 931, 36 N.Y.S.3d 892 (2d Dep’t 2016); Renee P.-F. v. Frank G., 161 A.D.3d 1163, 79 N.Y.S.3d 45 (2d Dep’t 2018).

[9]. The Court of Appeals denied leave in that case, thereby allowing the “tri-parentage” arrangement established by the Second Department to stand.

[10]. David S. v. Samantha G., 59 Misc. 3d 960, 74 N.Y.S.3d 730 (Family Ct., N.Y. Co. 2018).

[11]. Dawn M. v. Michael M., 55 Misc. 3d 865, 47 N.Y.S.3d 898 (Sup. Ct., Suffolk Co. 2017).

[12]. Unreported decision.

[13]. Dawn M. v. Michael M., 55 Misc. 3d at 870.

[14]. David S. v. Samantha G., 59 Misc. 3d at 966.

[15]. In a different decision, the Third Department ruled that three parents cannot “all simultaneously have standing to seek custody” (Shanna O. v. James P., 176 A.D.3d 1334, 1335, 112 N.Y.S.3d 792 (3d Dep’t 2019)).

[16]. 158 A.D.3d 767, 71 N.Y.S.3d 549 (2d Dep’t 2018).

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