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LAW AND THE FAMILY
"VISITATION
RIGHTS OF NON-PARENTS"
Joel R. Brandes
New York Law Journal
December 19, 2001
NEW YORK custody determinations are
based upon our public policy that courts should do what is in the best
interest of the child. [FN1] However, such determinations are subordinate to
our public policy that biological parents are entitled to bring up their
children as they see fit, absent interference from others, unless the child's
best interests would be endangered. [FN2]
Case Law
In Bennett v. Jeffreys, [FN3] the Court
of Appeals held that unless there was proof of "abandonment, unfitness,
persistent neglect, unfortunate or involuntary extended disruption of custody,
or other equivalent but rare extraordinary circumstances which would
drastically affect the welfare of the child," a person who was not a
biological parent had no standing to apply for custody in the face of
opposition by a biological parent. A finding of extraordinary circumstances
does not justify depriving a natural parent of the custody of a child. Instead
it gives the petitioner standing which triggers the court's right to make a
disposition that is in the child's best interests. [FN4] The court noted that
"extraordinary circumstances" do not arise solely because it is in the child's
best interests. [FN5]
In Matter of Adoption of L., [FN6] the
Court of Appeals held that once it is found that a parent is fit and has not
abandoned, surrendered or otherwise forfeited his parental rights, the inquiry
as to whether a parent or third party shall have custody ends. [FN7] In Matter
of Ronald FF. v. Cindy GG. [FN8] the Court of Appeals declined to extend
Bennett's "extraordinary circumstances" rule to allow a nonbiological
individual to have visitation with a child against the wishes of the custodial
parent. It held that "[v]isitation rights may not be granted on the authority
of the * * * extraordinary circumstances rule, to a biological stranger where
the child, born out of wedlock, is properly in the custody of his mother."
While noting that "visitation is a subspecies of custody," the Court of
Appeals explained that the two relational categories differed fundamentally in
degree, thereby precluding a casual extension of the extraordinary
circumstances rule to the area of visitation.
In Alison D. v. Virginia M., the Court
of Appeals affirmed a judgment, which dismissed a habeas corpus proceeding to
obtain visitation rights. The child was born by artificial insemination of the
respondent, pursuant to the couple's decision to raise a family together. When
the child was two years and four months old, the parties terminated their
relationship, but agreed to a visitation schedule between the petitioner and
the child. Respondent subsequently terminated petitioners' communication with
the child. The Court noted that DRL 70 gives either parent standing to apply
to the supreme court for a writ of habeas corpus ... and authorizes it to
award the "custody of such child to either parent. It held that although DRL
70 does not define the term "parent" the petitioner was not a biological
parent, within the meaning of the statute and could not achieve standing under
DRL 70 to apply for a habeas corpus writ [FN9]. Petitioner claimed to have
acted as a "de facto" parent or that she should be viewed as a parent "by
estoppel." The Court held that these claims were insufficient to give her
standing, because to allow the Court to award visitation, a limited form of
custody, to a third person would necessarily impair the parents' right to
custody and control. It specifically rejected petitioners' invitation to read
the term parent in DRL 70 to include categories of nonparents who have
developed a relationship with a child or who have had prior relationships with
a child's parents and who wish to continue visitation with the child.
In Lynda A.H. v. Diane T.O. [FN10] the
Appellate Division, Fourth Department, held that petitioner, as a non-parent,
of a child born to her lover by artificial insemination, could not obtain
visitation rights to a child in the custody of her natural mother, without a
showing of extraordinary circumstances, which she had not made. Petitioner,
who was not a parent of the child, had no standing to obtain custody of or
visitation with the child in the absence of extraordinary circumstances. It
emphasized that it is insufficient to show that the child has bonded
psychologically with the non-parent. Absent evidence that respondent has
abandoned, surrendered or otherwise forfeited her parental rights, "the
inquiry ends."
Nevertheless, in Jean Maby H. v. Joseph
H [FN11] the Second Department, held that a nonbiological parent may invoke
the doctrine of equitable estoppel "to preclude the biological parent from
cutting off custody or visitation with the child."
When the plaintiff and the defendant
began dating in 1987, the plaintiff was already pregnant with Kelly H., who
had been fathered by a man other than the defendant. The parties began to live
together at the time that Kelly was born in 1988. They were married in October
1990, and in March 1992 the plaintiff gave birth to the parties' son, Todd H.
The plaintiff commenced the divorce action in June 1995, seeking, inter alia,
custody of Kelly and Todd, child support for Todd, and a judgment declaring
that the defendant was not Kelly's father. The court ordered a hearing on the
issue of whether the defendant could invoke the doctrine of equitable estoppel
to preclude a challenge to his fatherhood of Kelly.
The Supreme Court stated that, although
the evidence seemed to suggest that defendant had established a prima facie
basis for the application of equitable estoppel, Ronald FF. and Alison D.
precluded its application since the doctrine was inconsistent with those
cases.
In the Second Department
The Second Department reversed, and
remitted the matter for a hearing to determine whether equitable estoppel
should be applied in the best interests of the child. It stated that the
doctrine of equitable estoppel "is imposed by law in the interest of fairness
to prevent the enforcement of rights which would work [a] fraud or injustice
upon the person against whom enforcement is sought and who, in justifiable
reliance upon the opposing party's words or conduct, has been misled into
acting upon the belief that such enforcement would not be sought." It noted
that courts have recognized this doctrine as a defense in proceedings
involving challenges to paternity.
The Second Department refused to read
Ronald FF. and Alison D. as precluding the application of equitable estoppel
because such an interpretation would effectively preclude the application of
the doctrine in a myriad of cases such as the paternity cases it cited in its
opinion. It found that they were distinguishable on their facts because in
Ronald FF. the nonbiological father never raised the doctrine of equitable
estoppel, the father and mother were never married and they resided together
off and on for approximately two years after the child was born. While the
father and child had developed a relationship during that time, the father was
not residing with the mother and child when he brought the petition to stay
her relocation to Texas. As to Alison D., it believed that the issue of
equitable estoppel was "merely brushed upon by the gay cohabitant."
The court said that a further rationale
for not applying "the apparent rule" espoused in Ronald FF. and Alison D. and
finding that they were distinguishable was its belief that recent decisions of
the Court of Appeals have placed a greater emphasis on the best interests of
the child as the determinative or prevailing concern, and that the best
interests of the child would not be served if they were blindly applied.
The Third Department
In Multari v. Sorrell [FN12] the Third
Department refused to find that petitioner was a parent by estoppel and agreed
with the Fourth Department that a non-parent does not have standing to seek
visitation with a child. Petitioner was the former boyfriend of respondent
Renee B. Sorrell. They never married but lived together for six years during
which time petitioner formed a close and loving relationship with respondents'
son, who was approximately 18 months old when petitioner and respondent met
and eight years old when their relationship ended. The child had regular
unsupervised contact as an infant with his biological father, which eventually
became supervised and then stopped altogether when the child was about two
years old. His biological father recently resurfaced and visitation between
the two was re-established.
After their breakup in August 1998,
respondent permitted petitioner to have contact with the child to ease the
transition of their separation for the child. These visits decreased in
frequency and duration and terminated altogether in May 1999. Petitioner
thereafter commenced a proceeding seeking visitation, which he alleged would
be in the best interest of the child. Petitioner claimed that he was
"requesting the Court to intervene in this situation based upon the doctrine
of equitable estoppel." Following a hearing as to whether the court could
invoke this doctrine, the court found that he failed in this burden and
dismissed the petition.
Although concluding that Family Court
correctly determined that petitioner failed to make out a prima facie case of
equitable estoppel, the Third Department found that affirmance was mandated on
the more fundamental ground that petitioner lacked standing to seek visitation
and "cannot get around this insurmountable legal hurdle by attempting to
offensively invoke the doctrine of equitable estoppel." It found that the
facts of the case were governed squarely by the Court of Appeals' decisions in
Matter of Ronald FF. and Matter of Alison D.
'Matter of Ronald FF'
The Third Department found that as firmly
established in Matter of Ronald FF. the rights of a custodial parent "include
the right to determine who may or may not associate with [that parent's]
child" and the State may not interfere with this fundamental right absent a
showing of "some compelling State purpose which furthers the child's best
interest." As there was no dispute that respondent was a fit parent and the
proper custodian for the child, Matter of Alison D. further established that,
no matter how close and loving petitioners' relationship was with respondents'
child, petitioner, as a biological stranger to that child, lacked standing to
seek visitation. It noted that in Matter of Alison D. the Court of Appeals
specifically rejected the petitioner's claim that her status as a parent "by
estoppel" was sufficient to confer standing to seek visitation.
It reviewed the briefs in that case to both
the Court of Appeals and the Second Department and noted that the petitioner
specifically argued in both courts for the application of the doctrine of
equitable estoppel to prohibit the respondent from denying her visitation, an
argument that both courts rejected. The grounds advanced for application of
the doctrine in that case were nearly identical to those advanced by
petitioner in this case. Also of note, was "Alison D. explicitly argued to the
Court of Appeals that "[a]t the very least, [she had] raised a factual
question regarding whether Virginia M. should be estopped from denying
visitation" (an argument that the Court obviously rejected) and requested "a
full hearing on her claim of equitable estoppel" (which the Court obviously
denied). Thus, no matter how terse its language on the issue of equitable
estoppel, and no matter how much we might be inclined to agree with our
concurring Justice philosophically, we are bound to adhere to the Court of
Appeals' decision in Matter of Alison D. v. Virginia M. (77 NY2d 651, supra),
which stands for the proposition that a nonbiological parent cannot invoke
equitable estoppel to get around his or her lack of standing to assert
visitation." The Court noted that any change in the state of the law in this
regard is for the Legislature or the Court of Appeals.
The Court acknowledged that some courts have ruled that the
doctrine of equitable estoppel may be applied to custody and visitation
disputes in certain circumstances, particularly circumstances far more
compelling than those in the instant matter but it declined to expand the use
of this doctrine by applying it to the facts of this case.
Joel R. Brandes has law offices in Garden City and New York
City. He co- authored the nine-volume Law and the Family New York 2nd Ed. and
Law and the Family New York Forms (both published by West Group).
FN(1) DRL 240; Finlay v. Finlay, 240 NY 429 (1925)
FN(2) Soc Serv L 384-b (1)(a)(ii)
FN(3) 40 N.Y.2d 543, 387 N.Y.S.2d 82 (1976)
FN(4) Matter of Adoption of L. supra; Merritt v. Way (1983) 58
NY2d 850,460 NYS2d 20; Bennett v. Jeffreys, supra.
FN(5) Re Sheila G. (1984) 61 NY2d 368, 474 NYS2d 421; Re RR
(1979) 48 NY2d 117, 421 NYS2d 863; Re K. (Anonymous) (1979) 47 NY2d 374, 418
NYS2d 339.
FN(6) Supra.
FN(7) People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 113
N.E.2d 801 (1953); People ex rel. Scarpetta v. Spence-Chapin Adoption Service,
28 N.Y.2d 185, 321 N.Y.S.2d 65 (1971); Dickson v. Lascaris, 53 N.Y.2d 204, 440
N.Y.S.2d 884 (1981); Matter of Adoption of L., supra
FN(8) 70 N.Y.2d 141, 517 N.Y.S.2d 932
FN(9) (1990, 2d Dept.) 155 App Div 2d 11, 552 NYS2d 321, 77
NY2d 651, 569 NYS2d 586 (1991)
FN(10) 243 AD2d 24, 673 N.Y.S.2d 989 (4th Dept, 1998).
FN(11) 246 AD2d 282 (2d Dept., 1998)
FN(12) AD2d , NYS2d , NYLJ, 10-22-01, P.21, Col. 3 (3d Dept.,
2001)
12/19/2001 NYLJ 3, (col. 1)
