Thomas S. v. Robin Y.

—Order of the Family Court, New York County (Edward Kaufmann, J.), entered April 13, 1993, which denied petitioner’s application for an order of filiation and visitation with Ry R.-Y., and which dismissed the petition, reversed, on the law, without costs, and the matter remanded for entry of an order of filiation and for reassignment for further proceedings pursuant to part 4 of article 5 of the Family Court Act, including a hearing on the issue of visitation.

This appeal presents the narrow issue of whether a sperm donor who is known to his child as her father and who, despite residing in California, has had considerable contact with her at the instance of her mother, is entitled to an order of filiation, as mandated by Family Court Act § 542. We hold that he is. The broader issue of visitation, while argued extensively in the briefs, has not been adequately explored, and we therefore remand this issue for a hearing.

The child, Ry R.-Y., now 12 years old, lives with her mother, respondent Robin Y., the mother’s lifetime companion, Sandra R., and Sandra’s child, Cade, now 14, who was also conceived through artificial insemination by a donor known to her mother. Petitioner, who is also gay, was sought out by Robin Y. as a known donor and, after several attempts in both New York and California, Robin Y. successfully inseminated herself with petitioner’s semen in February 1981 at the home of a mutual friend.

Ry was born on November 16, 1981 in San Francisco, where the household temporarily relocated in connection with Sandra R.’s employment. Like Cade, Ry was given the last names of R. and Y. Petitioner is not listed on Ry’s birth certificate, and R. and Y. paid all expenses associated with the pregnancy and delivery. Petitioner was, however, informed of the birth and brought congratulatory flowers to R. and Y.’s home. Later that year, the household moved back to New York where they currently occupy an apartment located in a building owned by Sandra R.

For the first three years of her life, petitioner saw Ry only once or twice while in New York on business. In accordance with an oral agreement with R. and Y., he did not call, support or give presents to her during this period. When Cade, at the age of approximately five years, started asking questions about her father, R. and Y., as they had agreed between themselves, made arrangements for Ry and Cade to meet their biological fathers.

Petitioner testified that there were approximately 26 visits with the R. and Y. family over the following six-year period, ranging in duration from a few days to two weeks. Robin Y. estimates that appellant spent a total of 60 days with the R.-Y. family over the course of those six years, and petitioner estimates 148 days. Whatever the figure, it appears that all parties concerned developed a comfortable relationship with one another. Photographs included in the exhibits depict a warm and amicable relationship between petitioner and Ry, and there are numerous cards and letters from Ry to petitioner in which she expresses her love for him.

In July 1990, petitioner asked Robin Y. for permission to take Ry and Cade to see his parents and stay at a beach house with some of his siblings and their children. It seems that petitioner felt awkward about introducing R. and Y. to his parents. R. and Y., however, were not willing to allow petitioner to take the girls unless the mothers accompanied them.

It was apparently during the course of these negotiations that petitioner revealed his desire to establish a paternal relationship with Ry. Y. and R. regarded this as a breach of their oral agreement, insisting that visitation continue on the same terms as over the past six years, viz., with their supervision. They also rejected petitioner’s suggestion to consult a family counselor or mediator. Unable to resolve his differences with R. and Y. and unable to see his daughter for a period of several months, petitioner moved, by order to show cause, for an order of filiation and for visitation.

During the course of the proceedings, Family Court ordered blood tests and a psychiatric evaluation of Ry. Petitioner, Robin Y. and Ry all submitted to blood genetic marker tests pursuant to Family Court Act § 532. The tests indicated a 99.9% probability of petitioner’s paternity. Psychiatric evaluation revealed a belief on Ry’s part that any relationship with petitioner would necessarily disrupt her relationship with Robin Y. and Sandra R. and might therefore undermine the legitimacy of her perception of the family unit. It also revealed that, since these proceedings were instituted, Ry has expressed a desire to end all contact with petitioner.

Family Court found by clear and convincing evidence, based upon the blood tests, that petitioner is the biological father of Ry. Nevertheless, citing the doctrine of equitable estoppel, the court refused to enter an order of filiation and dismissed the proceeding. The court characterized petitioner as an "outsider attacking her [Ry’s] family [and] refusing to give it respect”, concluding that "a declaration of paternity would be a statement that her family is other than what she knows it to be and needs it to be” and, therefore, "would not be in her best interests.” (157 Misc 2d 858, 866-867.) The court added, "Even were there an adjudication of paternity, I would deny [petitioner’s] application for visitation.” (Supra, at 867.)

It is appropriate to begin with the observation that the effect of Family Court’s order is to cut off the parental rights of a man who is conceded by all concerned—the child, her mother and the court—to be the biological father. The legal question that confronts us is not, as Family Court framed it, whether an established family unit is to be broken up. Custody of the child is not now, and is unlikely ever to be, an issue between the parties. Rather the question is whether the rights of a biological parent are to be terminated. Absent strict adherence to statutory provisions, termination of those rights is in violation of well established standards of due process and cannot stand (Matter of Ricky Ralph M., 56 NY2d 77, 81, citing Santosky v Kramer, 455 US 745).

The asserted sanctity of the family unit is an uncompelling ground for the drastic step of depriving petitioner of procedural due process (Lehr v Robertson, 463 US 248). Whatever concerns and misgivings Family Court and the dissenters may entertain about visitation, custody and the child’s best interests, it is clear that they are appropriately reserved for a later stage of the proceedings. As the Appellate Division, Second Department observed in Matter of Jean C. v Andrew B. (86 AD2d 891, 892): "To the extent that paternity has been established by clear and convincing and entirely satisfactory evidence, section 542 of the Family Court Act mandates the entry of an order of filiation. The ‘best interests of the child’ are not jeopardized by the entry of such an order. Following an order of filiation, an order of support, as well as orders of custody and visitation, may or may not be entered, within the discretion of the court (Family Ct Act, §§ 511, 545, 549; cf. Matter of La Croix v Deyo, 108 Misc 2d 382). Further, a proceeding pursuant to section 384-b of the Social Services Law, which provides for the termination of parental rights, pursuant to a statutory scheme that takes into consideration the ‘best interests of the child,’ is not precluded by an order of filiation.”

The reasoning advanced by the dissent to obviate further proceedings involves the predetermination of the very issues that would normally be resolved by hearings on visitation and, if warranted, termination of parental rights (supra). Without the order of filiation to which the law entitles him, petitioner lacks standing to seek visitation (Family Ct Act § 549) or challenge respondent’s (and the dissent’s) concept of what may or may not be in the child’s best interests (Social Services Law § 384-b). Apparently convinced that petitioner could not possibly contribute anything beneficial to the court’s consideration of this issue, the dissent would deny petitioner the right to his day in court. Moreover, a subsequent hearing is the appropriate method for respondent to seek an order of support (Family Ct Act § 545), the absence of which is of particular concern to the dissent. The record thus far is devoid of any suggestion that support from petitioner was ever sought, and it would appear from the asserted terms of the oral agreement between the parties and the tone of respondent’s briefs that any offer of support would have been regarded as an intrusion upon the family relationship among respondent, Sandra R. and Ry.

Even more disturbing is the suggestion that the judicial process will pose "severe traumatic consequences” to the child whose interests it is designed to protect. Petitioner is portrayed by the dissent as the villain of this case for having the temerity to request that Ry and her sister accompany him on an unsupervised visit to meet his parents, causing a "rift” and precipitating this litigation. The record, however, indicates that it was Robin Y. and Sandra R. who opposed this visit and does not reflect any initial resistance on the part of Ry. It was only some period of time after Robin Y. and Sandra R. refused petitioner any further visitation with his daughter that Ry developed overt animosity towards the man she had called "Dad” and regarded with great affection. As the Court of Appeals has noted, "The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children” (Matter of Nehra v Uhlar, 43 NY2d 242, 249; see also, Friederwitzer v Friederwitzer, 55 NY2d 89, 94-95).

The apparent manipulation of an innocent child’s affections and the obvious damage wreaked upon the once harmonious relationship with her father do not deter the dissent from the view that the child’s "haunting fear” of being taken away from "the woman whom she has consistently thought of as her second parent” must have been instilled by petitioner. Whether Ry will come to regret the poisoning of her formerly amicable relationship with her father is beyond the meager ken of a court of law and must be consigned to the conscience of whoever must abide the consequences. It remains to be seen whether petitioner’s is the only parent-child relationship to be damaged by this dispute.

The emphasis placed on custody, both by respondent and the dissent, is out of all proportion to its relevance to this proceeding. First, Thomas S. has never asserted a desire to gain custody of Ry. Second, as noted, custody and visitation are matters for subsequent hearings (see, Matter of Alison D. v Virginia M., 77 NY2d 651, 658 [Kaye, J., dissenting]). Finally, the extent of petitioner’s involvement in Ry’s life is at once characterized by the dissent as both inadequate and overly intrusive. He is vilified for failing to sufficiently undertake his parental responsibility to provide ongoing support for the child and her education, without any consideration for whether support was necessary, solicited or even deemed desirable by her mother and Sandra R. He is criticized for having only a limited experience with the day-to-day events in his child’s life, without regard for the three thousand-mile distance between residences or the degree to which access to the child was limited by respondent and Sandra R. At the same time, petitioner’s desire to communicate and visit with his daughter is portrayed as a threat to the stability and legitimacy of the family unit constituted by Ry, respondent and Sandra R. It is distressing that petitioner, who seems to have exhibited sensitivity and respect for the relationship between respondent and her domestic partner, is proposed to be compensated for his understanding by judicial extinguishment of his rights as a father. Such a result is offensive to the Court’s sense of equity. Moreover, such an injustice hardly serves to promote tolerance and restraint among persons who may confront similar circumstances. It discourages resolution of disputes involving novel and complex familial relationships without resort to litigation which, ideally, should only be pursued as a last resort.

No one would suggest that, in the typical case of divorce and remarriage of a mother, a father’s parental rights should thereupon be subject to termination because his intimate involvement in the child’s upbringing is no longer feasible or welcome. By the same token, the mere assertion of filiation by a biological parent will not prevent termination of parental rights where statutory criteria are met (Social Services Law § 384-b [4]; Matter of Star Leslie W., 63 NY2d 136, 146-147).

It is clear that the dissent does not construe the issues presented by this case in the limited context of a filiation proceeding or even the more expansive proceeding for an order of visitation, which is the matter ultimately to be determined. Without apparent regard for the interests of the parties to this litigation, the dissent proceeds to analyze the issues from the context of an adoption, particularly the necessity for petitioner’s consent. Thus, Domestic Relations Law §111 is invoked to deny petitioner a protected paternal right on the ground that he failed to contribute to the child’s support (subd [1] [d] [i]). Also prominently relied upon are cases which stand for the limited proposition that a child may be given up for adoption shortly after birth without any necessity that the unwed father consent or even be advised of the child’s birth unless he has indicated a willingness to assume full parental responsibility (Matter of Robert O. v Russell K., 80 NY2d 254, 259, 262, citing Lehr v Robertson, 463 US 248, 261, supra), a determination which rests on a distinct statutory basis (Domestic Relations Law § 111 [1] [e]; Matter of Robert O. v Russell K., supra, at 261). These cases are inapposite both because the instant dispute arose when the child was some nine years old and because the issue is not whether the Federal Constitution bestows parental rights on petitioner, but whether he is to be afforded rights conferred by New York State statute (cf., Quilloin v Walcott, 434 US 246 [noncustodial, unwed father does not have absolute veto power over adoption]; Caban v Mohammed, 441 US 380, revg Matter of David A. C., 43 NY2d 708 [gender-based distinction between consent requirements^for parents under Domestic Relations Law § 111 (former [1]) unconstitutional]).

The first observation is the obvious one, that Sandra R. has not filed an adoption petition and that the issues presented by such a proceeding, including the necessity for petitioner’s consent (Domestic Relations Law § 111 [2] [a]) are simply not before us (see, Matter of Corey L v Martin L, 45 NY2d 383, 391 [indispensing with parental consent to adoption, the best interests of the child are no substitute for a finding of abandonment]). While the question of the respective rights of a gay life partner vis-á-vis a biological parent presents a timely issue for consideration by the legislative and judicial branches of government, its resolution should only be attempted by a court upon a full record, in an adversarial proceeding in which both sides have been afforded the opportunity to brief the formidable issues presented—including whether reform of Domestic Relations Law § 111 is exclusively the province of the Legislature (see, Caban v Mohammed, supra, at 392, n 13). The development of the law is not aided by summary determination of novel controversies (see, Quilloin v Walcott, supra, at 253-254).

The other observation is that it is in no one’s best interest to require a father, in the position of petitioner, to choose between asserting full parental rights, encompassing support and custody of the child (Quilloin v Walcott, supra), in order to achieve the limited relief sought—an order of filiation and, ultimately, visitation (Family Ct Act § 549). This Court would perform a disservice to the litigants by expanding the proceeding to place custody in issue. As a matter of sound appellate jurisprudence, the Court should limit its consideration to questions embraced by the relief actually sought and not attempt to address issues which may or may not arise in the course of future proceedings. The gratuitous interjection of custody, in particular, raises the very threat to the relationship between Ry and her mothers that respondent and the dissent posit in support of the termination of petitioner’s parental rights. Clearly, the resolution of this matter should not be predicated on avoiding judicial consideration of petitioner’s right to relief that he has not thus far sought and which he might well never seek.

Family Court’s disposition is no more compelled by the equities of this matter than by the law. The notion that a lesbian mother should enjoy a parental relationship with her daughter but a gay father should not is so innately discriminatory as to be unworthy of comment. Merely because petitioner does not have custody of his daughter does not compel the conclusion, embraced by the dissent, that he may not assert any right to maintain a parental relationship with her. While much is made by Family Court of the alleged oral understanding between the parties that petitioner would not assume a parental role towards Ry, any such agreement is unenforceable for failure to comply with explicit statutory requirements for surrender of parental rights (Social Services Law § 384; Family Ct Act § 516; see, Dennis T. v Joseph C., 82 AD2d 125, lv denied 55 NY2d 792; Matter of "Baby Boy P.”, 85 Misc 2d 1001), as the dissent concedes.

The case law urged by respondent to support estoppel against petitioner, to the extent that it is material under the unusual circumstances of this case, deals with the preservation of the legitimacy of a child (Matter of Barbara A. M. v Gerard J. M., 178 AD2d 412, 413; Matter of Ettore I. v Angela D., 127 AD2d 6; Matter of Sharon GG. v Duane HH., 95 AD2d 466, affd 63 NY2d 859). As contemplated by statute (Family Ct Act § 417; Domestic Relations Law § 24 [1]), a child born out of wedlock will only be rendered legitimate by the subsequent marriage of the mother and a man admitting paternity or judicially declared to be the father. Such a prospect in this case is remote, as is the relevance of the cited authority. The sweeping change in the legal concept of legitimacy, as urged by amici curiae, is a prerogative of the Legislature, not the courts.

Family Court presumed to apply the doctrine of equitable estoppel to foreclose any attempt by petitioner to obtain judicial consideration of his rights as a parent. However, the doctrine is more appropriately applied against the mother than against petitioner (Michel DeL. v Martha P., 173 AD2d 308, 309; Matter of Boyles v Boyles, 95 AD2d 95, 98). If respondent now finds petitioner’s involvement in his daughter’s life to be inconvenient, she cannot deny that her predicament is the result of her own action. Not content with the knowledge of the identity of the biological father that her chosen method of conception afforded, Robin Y. initiated and fostered a relationship between petitioner and Ry. However strenuously this relationship may be gainsaid by respondent, its nature, duration and constancy during the six years prior to the commencement of this proceeding amply demonstrate petitioner’s interest and concern for his child (Social Services Law § 384-b) so as to preclude summary termination of his parental rights. Nor, given that Ry has known petitioner to be her father since the age of three, is there any credibility to the suggestion that mere acknowledgement of petitioner’s legal status will result in a shock to the child’s sensibilities (compare, Terrence M. v Gale C., 193 AD2d 437, lv denied 82 NY2d 661). According to the testimony of the court-appointed psychiatrist, Ry’s recently expressed desire to sever contact with petitioner, coinciding as it does with the onset of the instant dispute, is based on concerns communicated to her by Robin Y. and Sandra R. These fears are based on the misapprehension that visitation by petitioner necessarily poses an immediate threat to the stability of the household. In any event, Family Court’s precipitous pronouncement notwithstanding, visitation is a matter yet to be determined, and the value of therapy in reestablishing the relationship between Ry and her father is an appropriate consideration in that context (Wolfson v Minerbo, 108 AD2d 682). Finally, entry of an order of filiation has the advantage of supplying a further source of support, should the necessity arise, together with the potential for substantial inheritance (Michel DeL. v Martha P., supra, at 309).

We reject the dissent’s view that the alleged agreement between the parties constitutes evidence of a lack of committment to his child on the part of petitioner. As the dissenters concede, legal impediments and public policy considerations bar enforcement of the oral agreement, and it can therefore be accorded no force or effect. It is the longstanding rule of equity, now extended to law, that the facts be viewed in their fullest (CPLR 3025 [b]; Siegel, NY Prac § 237, at 353 [2d ed]). The Court cannot simply ignore the significant events that have transpired since Ry’s third birthday. In any event, we regard the determination of this matter in any manner that departs from the express procedures delineated in article 5 of the Family Court Act as a violation of petitioner’s statutory and Constitutional rights.

Having initiated and encouraged, over a substantial period of time, the relationship between petitioner and his daughter, respondent is estopped to deny his right to legal recognition of that relationship. The provisions of Family Court Act § 542 (a) are clear and unambiguous and, therefore, there is no room for judicial interpretation. Having found that petitioner is the father of Ry R.-Y., Family Court was commanded by statutory direction to enter an order of filiation (Matter of John H. v Suffolk County Dept. of Social Servs., 174 AD2d 669, 670, citing Matter of Jean C. v Andrew B., 86 AD2d 891, 892, supra; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 76). Concur —Rubin, Nardelli and Williams, JJ.