A Service of Rainbow Law

A sharply divided panel of the New York Appellate Division, 2^nd Department, based in Brooklyn, ruled 3-2 on May 26 that a lesbian mother could not seek a child support order against her former partner in the Rockland County Family Court, because there is no specific statutory authorization for a proceeding to determine that a woman is a child’s parent. The ruling in H.M. v. E.T., 2009 Westlaw 1477264, reversed a ruling by Rockland Family Court Judge William P. Warren, who had ordered a hearing to determine whether E.T. should be precluded from denying a support obligation to the child whose birth she had planned with her partner.

The court’s opinion, by Justice Joseph Covello, drew a vehement dissenting opinion from Justice Ruth C. Balkin, joined by Justice Steven W. Fisher. The other judges in the majority were Justices Daniel D. Angiolillo and Cheryl E. Chambers.

According to the dissent, which provided a much more detailed and expansive statement of the facts than the majority, the parties were same-sex partners living in New York State for more than five years. Beginning with the first year of their relationship, they planned to have a child. E.T. had previously been married to a man and had two children from that relationship. Their plan was that H.M. would become pregnant through anonymous donor insemination, and would stay home to care for the children while E.T. worked towards her chiropractic degree.

It took numerous attempts at the fertility clinic, but H.M. finally got pregnant, with E.T. injecting the sperm specimen, and gave birth in September 1994 at home with a midwife’s assistance. For the first five months of their son’s life, the women and children lived together as a family, but E.T. decided to end the relationship in January 1995, and gave H.M. a check for $1,500 to help her cover the costs of moving out and finding a home for herself and the child. Although E.T. gave some gifts over the ensuing years, she never paid child support. H.M. cared for the child on a minimal income while completing her own education and earning a master’s degree in social work.

A reconciliation was attempted in 1997, but was unsuccessful, and eventually H.M. moved with her son to Canada to live with her parents. In 2006, she filed for bankruptcy, and also filed a "support application" with a local court in Ontario, Canada. Under the Uniform Interstate Family Support Act (UIFSA), the matter was referred to the Rockland County Family Court to assert jurisdiction over E.T., but E.T. objected to the court’s jurisdiction, arguing that the family court lacked authority to determine that a woman who is not legally or biologically related to a child is subject to a parental support obligation.

The matter was referred to a Support Magistrate, who agreed with E.T., but H.M. filed objections to the magistrate’s report, and Family Court Judge Warren was persuaded by her arguments that she was entitled to a hearing, at which she could attempt to prove through the doctrine of equitable estoppel that E.T. should be precluded from denying her parental obligation. E.T. appealed to the Appellate Division, 2^nd Department, which has jurisdiction over appeals from Rockland County.

The majority of the court agreed with the Support Magistrate that the Family Court lacked jurisdiction over the matter. The court pointed out that support proceeding arise under Article 5 of the Family Court Act, which authorizes a court upon the application of a child’s mother to determine paternity for purposes of determining parental child support obligations, but that the heavily gendered language of the statute does not specifically authorize the court to determine that a woman might have such a support obligation.

Justice Covello wrote that "as the Support Magistrate recognized, Family Court Act article 5, entitled ‘paternity proceedings,’ only provides a vehicle for resolving controversies concerning a male’s fatherhood of a child. At common law, the father of a child born out-of-wedlock had no duty to support that child. Family Court Act article 5, providing for paternity proceedings, represents the most recent legislative effort to mitigate the harsh effects of that rule. Consistent with that goal, the plain language of numerous provisions of Family Court Act article 5 clearly and unambiguously indicates that a proceeding thereunder will only involve a controversy concerning a male’s fatherhood of a child."

In dissent, however, Justice Balkin noted that other provisions of the Family Court Act suggest that gender-neutral interpretations can be adopted when necessary to protect the best interests of a child, and that courts in many other states – most notably the California Supreme Court – have interpreted similarly gendered family law statutes to be gender neutral in order to meet the needs of modern-day "nontraditional" families.

But the majority insisted that as the family court is a court of limited, specific jurisdiction, it does not have power to determine an issue that is not specifically assigned to it by a statute or the constitution. "H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant," wrote Covello. "Under these circumstances, the Family Court cannot apply the doctrine [of estoppel], and necessarily cannot reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief." The court pointed out that the family court has not been granted authority to award equitable relief, a power reserved to the supreme court, the court of general trial jurisdiction in the state.

The majority suggested that H.M. should have brought an action in the supreme court, but the dissent pointed out that under the state’s family law statutes, only the family court was authorized to issue a child support order pursuant to the Uniform Interstate Family Support Act, so the supreme court might itself be powerless to act.

Criticizing the majority’s unduly literal interpretation of the statute, Justice Balkin pointed out that under this view two gay men who used a surrogate to have a child would be deprived of the family court’s jurisdiction to resolve a child support dispute, and, even more to the point, a man who discovered a foundling on his doorstep would be deprived of the family court’s assistance in seeking to prove that a particular woman with whom he had a past sexual relationship was the child’s mother. She also suggested that in our modern era of equal protection jurisprudence, interpreting the statute to apply to one sex and not the other would raise serious constitutional issues that could be avoided by a gender-neutral interpretation of the statute.

"Regardless of how a child enter this world, ‘a child is born in need of support,’" wrote Justice Balkin. "As a matter of public policy, a determination should be made as to whether E.T. is responsible for the support of the child, given that H.M. has already declared bankruptcy, and E.T.’s support obligation could otherwise fall to the public fisc. We would, therefore, affirm the order appealed from, which did little more than allow H.M. to attempt to demonstrate, at a hearing, that E.T. should be equitably estopped from asserting a right not to support the child whose conception and birth she so strongly encouraged."

The court’s opinion dramatically illustrates the inadequacy of New York’s archaic family law statutes, which our dysfunctional state legislature has never seen fit to revise to accommodate the realities of family life in the modern New York. And, as the dissent points out, the ruling is out of step with developing precedents in other states, and inconsistent with recent New York appellate rulings, including a case in which the highest court used equitable estoppel to impose a child support obligation on a man who was not legally or biologically related to a child on the ground that he had held himself out as the child’s father.

As H.M. is represented by pro bono counsel from the prominent New York City firm of Proskauer Rose LLP, it is likely that permission to appeal to the Court of Appeals will be sought.

Read the original article at Leonard Link

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