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In the Matter of Alison
D., Appellant, v. Virginia M., Respondent
Court
of Appeals of New York
77
N.Y.2d 651; 572 N.E.2d 27; 1991 N.Y. LEXIS 634;
569 N.Y.S.2d 586
March
20, 1991, Argued May 2, 1991, Decided
PRIOR HISTORY:
[***1] Appeal, by permission of the Appellate
Division of the Supreme Court in the Second
Judicial Department, from an order of that court,
entered March 2, 1990, which affirmed a judgment
of the Supreme Court (James D. Benson, J.),
entered in Dutchess County, dismissing a habeas
corpus proceeding to obtain visitation rights.
<=1>
Matter of Alison D. v Virginia M ., 155 AD2d 11.
DISPOSITION:
Order affirmed, with costs.
HEADNOTES:
Parent and Child -- Visitation -- Rights of
Nonparent -- Standing to Seek Visitation with
Child Properly in Custody of Biological Parent 77
N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS
634, ***1; 569 N.Y.S.2d 586 Petitioner, who is
not the biological or adoptive parent of a child
properly in the custody of his biological mother,
does not have standing to seek visitation with
the child under Domestic Relations Law @ 70.
Petitioner is not a "parent" within the
meaning of section 70. She has no right under
section 70 to seek visitation and, thereby, limit
or diminish the right of the concededly fit
biological parent to choose with whom her child
associates. To allow the courts to award
visitation -- a limited form of custody -- to a
third person would necessarily impair the
parents' right to custody and control of their
child. Section [***2] 70 should not be read 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.
COUNSEL: Paula
L. Ettelbrick, Marian Rosenberg and Debra L.
Rothberg for appellant. I. The court below erred
in holding that appellant was not a parent
entitled to assert a claim for visitation. (
<=2> Doe v Doe, 92 Misc 2d 184; <=3>
Matter of Mark V. v Gale P., 143 Misc 2d 487;
<=4> Matter of Plato's Cave Corp. v State
Liq. Auth., 68 NY2d 791; Matter of "Male
F.", <=5> 97 Misc 2d 505; <=6>
Rankin v Shanker, 23 NY2d 111; <=7> Matter
of Hogan v Culkin, 18 NY2d 330; <=8>
Braschi v Stahl Assocs. Co., 74 NY2d 201;
<=9> Matter of Rich v Kaminsky, 254 App Div
6; <=10> Finlay v Finlay, 240 NY 429;
<=11> Matter of Humphrey v Humphrey, 103
Misc 2d 175.) II. Virginia M. is equitably 77
N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS
634, ***2; 569 N.Y.S.2d 586 estopped from
refusing visitation between Alison D. and A.D.M.
( <=12> Metropolitan Life Ins. Co. v Childs
Co., 230 NY 285, 231 NY 551; [***3] <=13>
Matter of Karin T. v Michael T., 127 Misc 2d 14;
<=14> Wener v Wener, 35 AD2d 50;
<=15> Gursky v Gursky, 39 Misc 2d 1083.)
Anthony G.
Maccarini for respondent. I. The lower court was
correct in ruling that petitioner-appellant
lacked standing to institute an action for
visitation. ( <=16> Matter of Pierson, 126
AD2d 729; <=17> Lo Presti v Lo Presti, 40
NY2d 522; <=18> Matter of Bennett v
Jeffreys, 40 NY2d 543; <=19> Matter of
Roland F. v Brezenoff, 108 Misc 2d 133;
<=20> Matter of Ronald FF. v Cindy GG., 70
NY2d 141; <=21> Stanley v Illinois, 405
U.S. 645; <=22> Doe v Doe, 92 Misc 2d 184;
<=23> Matter of Mark V. v Gale P., 143 Misc
2d 487.) II. The courts should not redefine who
is a parent. ( <=24> Russello v United
States, 464 U.S. 16; <=25> People v Eulo,
63 NY2d 341; We' <=26> re Assocs. Co. v
Cohen, Stracher & Bloom, 65 NY2d 148;
<=27> Matter of Manhattan Pizza Hut v New
York State Human Rights Appeal Bd., 51 NY2d 506;
<=28> Van Amerogen v Donnini, 156 AD2d 103;
[***4] <=29> Matter of Karin T. v Michael
T., 127 Misc 2d 14; <=30> Matter of
Morningstar, 143 Misc 620; <=31> Betz v
Horr, 276 NY 83; <=32> Matter of Jennifer,
142 Misc 2d 912; <=33> Matter of Long v
Adirondack, Park Agency, 76 NY2d 416.) III. In
loco parentis status does not give standing to
assert a claim for visitation. ( <=34>
Matter of Ronald FF. v Cindy GG., 70 NY2d 141;
<=35> Matter of Trapp 77 N.Y.2d 651, *; 572
N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***4; 569
N.Y.S.2d 586 v Trapp, 126 Misc 2d 30; <=36>
Matter of Melissa M., 101 Misc 2d 407;
<=37> Matter of Orlando F., 40 NY2d 103.)
IV. The doctrine of equitable estoppel is
inapplicable to visitation matters. ( <=38>
Wener v Wener, 35 AD2d 50; <=39> Gursky v
Gursky, 39 Misc 2d 1083; <=40> Matter of
Karin T. v Michael T., 127 Misc 2d 14.) V. The
only constitutional rights in question here are
the rights of the legal parent to raise her child
as she sees fit. ( <=41> Wisconsin v Yoder,
406 U.S. 205; <=42> Baer v Town of
Brookhaven, 73 NY2d 942; <=43> Braschi v
Stahl Assocs. Co., 74 NY2d 201; <=44>
Stanley v Illinois, 405 U.S. 645; [***5]
<=45> Caban v Mohammed, 441 U.S. 380;
<=46> Pierce v Society of Sisters, 268 U.S.
510; <=47> Meyer v Nebraska, 262 U.S. 390;
<=48> Santosky v Kramer, 455 U.S. 745.) VI.
The trial court properly declined to appoint an
attorney for the child. ( <=49> Smith v
Organization of Foster Families, 431 U.S. 816.)
William B.
Rubenstein, of the Pennsylvania and District of
Columbia Bars, admitted pro hac vice, Nan D.
Hunter and Robert Levy for The American Civil
Liberties Union and another, amici curiae. A
restrictive reading of "parent" which
denies petitioner standing, burdens the
constitutional rights of the child by
establishing an irrebuttable presumption that
visitation by a coparent is never in the child's
best interest. ( <=50> Wisconsin v Yoder,
406 U.S. 205; <=51> Stanley v Illinois, 405
U.S. 645; <=52> Prince v Massachusetts, 321
U.S. 158; <=53> Meyer v Nebraska, 262 U.S.
390; <=54> Quilloin v Walcott, 77 N.Y.2d
651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634,
***5; 569 N.Y.S.2d 586 434 U.S. 246; <=55>
Matter of Ronald FF. v Cindy GG., 70 NY2d 141;
<=56> Duchesne v Sugarman, 566 F2d 817;
<=57> Smith v Organization of Foster
Families, 431 U.S. 816; [***6] <=58> Rivera
v Marcus, 696 F2d 1016; <=59> Baer v Town
of Brookhaven, 73 NY2d 942.)
Conrad K.
Harper, Jane E. Booth, Janice Goodman and Carol
R. Sherman for The Association of the Bar of the
City of New York, amicus curiae.
Petitioner-appellant Alison D., who has
functioned as A.D.M.'s parent, has standing to
bring this habeas corpus petition to determine
visitation rights. ( <=60> People ex rel.
Duryee v Duryee, 188 NY 440; <=61> Diemer v
Diemer, 8 NY2d 206; <=62> Matter of Lincoln
v Lincoln, 24 NY2d 270; <=63> Matter of
Town of New Castle v Kaufmann, 72 NY2d 684;
<=64> Braschi v Stahl Assocs. Co., 74 NY2d
201; <=65> Baer v Town of Brookhaven, 73
NY2d 942; <=66> McMinn v Town of Oyster
Bay, 66 NY2d 544; <=67> Group House v Board
of Zoning & Appeals, 45 NY2d 266; <=68>
City of White Plains v Ferraioli, 34 NY2d 300;
<=69> Matter of Ronald FF. v Cindy GG., 70
NY2d 141.)
Lynn Hecht
Schafran, Alison Wetherfield and Sally F.
Goldfarb of the District of Columbia and
Wisconsin Bars, admitted pro hac [***7] vice, for
NOW Legal Defense and Education Fund and another,
amici curiae. I. Alison D. has standing to seek
visitation under Domestic Relations Law @ 70
pursuant to a functional definition of
parenthood. ( <=70> Zablocki v Redhail, 434
U.S. 374; 77 N.Y.2d 651, *; 572 N.E.2d 27, **;
1991 N.Y. LEXIS 634, ***7; 569 N.Y.S.2d 586
<=71> Stanley v Illinois, 405 U.S. 645;
<=72> Prince v Massachusetts, 321 U.S. 158;
<=73> Pierce v Society of Sisters, 268 U.S.
510; <=74> Meyer v Nebraska, 262 U.S. 390;
<=75> Moore v East Cleveland, 431 U.S. 494;
<=76> City of White Plains v Ferraioli, 34
NY2d 300; <=77> Baer v Town of Brookhaven,
73 NY2d 942; <=78> McMinn v Town of Oyster
Bay, 66 NY2d 544; <=79> Group House v Board
of Zoning & Appeals, 45 NY2d 266.) II. A
functional definition of parenthood is necessary
to protect the rights of lesbian and gay
families. ( <=80> Frances B. v Mark B., 78
Misc 2d 112; <=81> Di Stefano v Di Stefano,
60 AD2d 976; <=82> M.A.B. v R.B., 134 Misc
2d 317; <=83> Guinan v Guinan, 102 AD2d
963.) III. A functional definition of parenthood
is practical and will promote [***8] the
interests of parents and children. ( <=84>
Braiman v Braiman, 44 NY2d 584.)
Janet E. Schomer
and Susan R. Keith for The Gay and Lesbian
Parents Coalition International and others, amici
curiae. Lesbian and gay coparents are the
functional equivalent of biological parents; thus
they are in loco parentis and the lower courts
erred in refusing to grant Alison D. standing. (
<=85> Matter of Jamal B., 119 Misc 2d 808;
<=86> Johnson v Jamaica Hosp., 62 NY2d 523;
<=87> People v Franklin, 79 AD2d 611;
<=88> Braschi v Stahl Assocs. Co., 74 NY2d
201; <=89> Matter of Ronald FF. v Cindy
GG., 70 NY2d 141; <=90> Matter of Bennett v
Jeffreys, 40 NY2d 543; <=91> Matter of
Taylor v Alger, 129 Misc 2d 1054; <=92>
Weiss v Weiss, 52 NY2d 170.) 77 N.Y.2d 651, *;
572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***8; 569
N.Y.S.2d 586 Jane A. Levine, David Chambers and
Martha Minow for Deborah A. Batts and others,
amici curiae. I. The court below erred in holding
that a person in the position of Alison D. is not
a "parent" entitled to be heard on a
claim for visitation. ( <=93> Matter of
Ronald FF. v Cindy GG., 70 NY2d 141; [***9]
<=94> Matter of Bennett v Jeffreys, 40 NY2d
543; <=95> Braschi v Stahl Assocs. Co., 74
NY2d 201.) II. This case should not be controlled
by Matter of Ronald FF. v Cindy GG., which is
both distinguishable and unwise. ( <=96>
Matter of Ronald FF. v Cindy GG., 70 NY2d 141;
<=97> Matter of Mark V. v Gale P., 143 Misc
2d 487.)
Loren M. Warboys
for Youth Law Center, amicus curiae. I. The child
has a substantial interest in this matter. (
<=98> Wisconsin v Yoder, 406 U.S. 205;
<=99> Pierce v Society of Sisters, 268 U.S.
510; <=100> Meyer v Nebraska, 262 U.S. 390;
<=101> Santosky v Kramer, 455 U.S. 745;
<=102> May v Anderson, 345 U.S. 528;
<=103> Caban v Mohammed, 441 U.S. 380;
<=104> Weiss v Weiss, 52 NY2d 170;
<=105> Duchesne v Sugarman, 566 F2d 817;
<=106> Smith v Organization of Foster
Families, 431 U.S. 816; <=107> Lehr v
Robertson, 463 U.S. 248.) II. The child's
interest should have been presented to the Court.
( <=108> Lassiter v Department of Social
Servs., 452 U.S. 18.)
JUDGES: Chief
Judge Wachtler [***10] and Judges Simons,
Alexander, Titone, Hancock, Jr., and Bellacosa
concur in Per Curiam opinion; Judge Kaye dissents
77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y.
LEXIS 634, ***10; 569 N.Y.S.2d 586 and votes to
reverse in a separate opinion.
OPINIONBY: PER
CURIAM
OPINION: [*654]
[**28] OPINION OF THE COURT
At issue in this
case is whether petitioner, a biological [*655]
stranger to a child who is properly in the
custody of his biological mother, has standing to
seek visitation with the child under Domestic
Relations Law @ 70. Petitioner relies on both her
established relationship with the child and her
alleged agreement with the biological mother to
support her claim that she has standing. We agree
with the Appellate Division that, although
petitioner apparently nurtured a close and loving
relationship with the child, she is not a parent
within the meaning of Domestic Relations Law @
70. Accordingly, we affirm.
I
Petitioner
Alison D. and respondent Virginia M. established
a relationship in September 1977 and began living
together in March 1978. * In March 1980, they
decided to have a child and agreed that
respondent would be artificially inseminated.
Together, they planned for the conception and
birth of the child and agreed to share jointly
all rights and responsibilities [***11] of 77
N.Y.2d 651, *655; 572 N.E.2d 27, **28; 1991 N.Y.
LEXIS 634, ***11; 569 N.Y.S.2d 586 child-rearing.
In July 1981, respondent gave birth to a baby
boy, A.D.M., who was given petitioner's last name
as his middle name and respondent's last name
became his last name. Petitioner shared in all
birthing expenses and, after A.D.M.'s birth,
continued to provide for his support. During
A.D.M.'s first two years, petitioner and
respondent jointly cared for and made decisions
regarding the child.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
* Given the
procedural posture of the case, the facts are
those alleged by petitioner in her habeas corpus
petition.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
In November
1983, when the child was 2 years and 4 months
old, petitioner and respondent terminated their
relationship and petitioner moved out of the home
they jointly owned. Petitioner and respondent
agreed to a visitation schedule whereby
petitioner continued to see the child a few times
a week. Petitioner also agreed to continue to pay
one half of the mortgage and major household
expenses. By this time, the child had referred to
both respondent and petitioner as
"mommy". Petitioner's visitation
[***12] with the child continued until 1986, at
which time respondent bought out petitioner's 77
N.Y.2d 651, *655; 572 N.E.2d 27, **28; 1991 N.Y.
LEXIS 634, ***12; 569 N.Y.S.2d 586 interest in
the house and then began to restrict petitioner's
visitation with the child. In 1987 petitioner
moved to Ireland to pursue career opportunities,
but continued her attempts to communicate with
the child. Thereafter, respondent terminated all
contact between petitioner and the child,
returning all of petitioner's gifts and letters.
No dispute exists that [*656] [**29] respondent
is a fit parent. Petitioner commenced this
proceeding seeking visitation rights pursuant to
Domestic Relations Law @ 70.
Supreme Court
dismissed the proceeding concluding that
petitioner is not a parent under Domestic
Relations Law @ 70 and, given the concession that
respondent is a fit parent, petitioner is not
entitled to seek visitation pursuant to section
70. The Appellate Division affirmed, with one
Justice dissenting, and granted leave to appeal
to our Court.
II
Pursuant to
Domestic Relations Law @ 70 "either parent
may apply to the supreme court for a writ of
habeas corpus to have such minor child brought
before such court; and [the court] may award the
natural guardianship, charge and custody of such
child [***13] to either parent * * * as the case
may require". Although the Court is mindful
of petitioner's understandable concern for and
interest in the child and of her expectation and
desire that her 77 N.Y.2d 651, *656; 572 N.E.2d
27, **29; 1991 N.Y. LEXIS 634, ***13; 569
N.Y.S.2d 586 contact with the child would
continue, she has no right under Domestic
Relations Law @ 70 to seek visitation and,
thereby, limit or diminish the right of the
concededly fit biological parent to choose with
whom her child associates. She is not a
"parent" within the meaning of section
70.
Petitioner
concedes that she is not the child's
"parent"; that is, she is not the
biological mother of the child nor is she a legal
parent by virtue of an adoption. Rather she
claims to have acted as a "de facto"
parent or that she should be viewed as a parent
"by estoppel". Therefore, she claims
she has standing to seek visitation rights. These
claims, however, are insufficient under section
70. Traditionally, in this State it is the
child's mother and father who, assuming fitness,
have the right to the care and custody of their
child, even in situations where the nonparent has
exercised some control over the child with the
parents' consent (see, <=109> Matter of
Ronald FF. v Cindy GG., 70 NY2d 141, 144, [***14]
citing <=110> People ex rel. Kropp v
Shepsky, 305 NY 465, 468-469). "It has long
been recognized that, as between a parent and a
third person, parental custody of a child may not
be displaced absent grievous cause or
necessity" ( <=111> Matter of Ronald
FF. v Cindy GG., supra, at 144; see also,
<=112> Matter of Bennett v Jeffreys, 40
NY2d 543, 549). To allow the courts to award
visitation -- a limited form of custody -- to a
third person would necessarily impair the
parents' [*657] right to custody and control
(id.). Petitioner concedes that respondent is a
fit parent. 77 N.Y.2d 651, *657; 572 N.E.2d 27,
**29; 1991 N.Y. LEXIS 634, ***14; 569 N.Y.S.2d
586 Therefore she has no right to petition the
court to displace the choice made by this fit
parent in deciding what is in the child's best
interests.
Section 70 gives
parents the right to bring proceedings to ensure
their proper exercise of their care, custody and
control (see, <=113> Matter of Roland F. v
Brezenoff, 108 Misc 2d 133, 134-135). Where the
Legislature deemed it appropriate, it gave other
categories of persons standing to seek visitation
and it gave the courts the power to determine
whether an award of visitation would be in the
child's best [***15] interests (see, e.g.,
Domestic Relations Law @ 71 [special proceeding
or habeas corpus to obtain visitation rights for
siblings]; @ 72 [special proceeding or habeas
corpus to obtain visitation rights for
grandparents]; see, <=114> Lo Presti v Lo
Presti, 40 NY2d 522, 526-527). We decline
petitioner's invitation to read the term parent
in section 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 (accord, <=115> Nancy S. v
Michele G., 228 Cal App 3d 831, 279 Cal Rptr 212
[1st Dist, Mar. 20, 1991]). While one may dispute
in an individual case whether it would be
beneficial to a child to have continued contact
with a nonparent, the Legislature did not in
section 70 give such nonparent the opportunity to
compel a fit parent to allow them to do so (see,
<=116> Matter of Ronald FF. v Cindy GG., 70
NY2d 141, supra; compare, Oregon Rev Stat Ann
[**30] @ 109.119 77 N.Y.2d 651, *657; 572 N.E.2d
27, **30; 1991 N.Y. LEXIS 634, ***15; 569
N.Y.S.2d 586 [1] [giving "(a)ny person
including but not limited to a foster parent,
stepparent, grandparent * * * who has established
emotional ties [***16] creating a child-parent
relationship with a child" the right to seek
visitation or other right of custody]).
Accordingly, the
order of the Appellate Division should be
affirmed, with costs.
DISSENTBY: KAYE
DISSENT: Kaye,
J. (dissenting). The Court's decision, fixing
biology n1 as the key to visitation rights, has
impact far beyond this particular controversy,
one that may affect a wide spectrum of
relationships -- including those of longtime
heterosexual stepparents, "common-law"
and nonheterosexual partners such as involved
here, and even participants in scientific
reproduction procedures. Estimates that more than
15.5 million children do [*658] not live with two
biological parents, and that as many as 8 to 10
million children are born into families with a
gay or lesbian parent, suggest just how
widespread the impact may be (see, Polikoff, This
Child Does Have Two Mothers: Redefining
Parenthood to Meet the Needs of Children in
Lesbian-Mother and other Nontraditional Families,
<=117> 78 Geo LJ 459, 461, n 2 [1990];
Bartlett, Rethinking Parenthood as an Exclusive
Status: The Need for Legal Alternatives When the
77 N.Y.2d 651, *658; 572 N.E.2d 27, **30; 1991
N.Y. LEXIS 634, ***16; 569 N.Y.S.2d 586 Premise
of the Nuclear Family has Failed, <=118> 70
Va L Rev 879, 880-881 [***17] [1984]; see
generally, Developments in the Law -- Sexual
Orientation and the Law, <=119> 102 Harv L
Rev 1508, 1629 [1989]).
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n1 While the
opinion speaks of biological and legal
parenthood, this Court has not yet passed on the
legality of adoption by a second mother.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
But the impact
of today's decision falls hardest on the children
of those relationships, limiting their
opportunity to maintain bonds that may be crucial
to their development. The majority's retreat from
the courts' proper role -- its tightening of
rules that should in visitation petitions, above
all, retain the capacity to take the children's
interests into account -- compels this dissent.
In focusing the
difference, it is perhaps helpful to begin with
what is not at issue. This is not a custody case,
but solely a visitation petition. The issue on
this appeal is not whether petitioner should
actually have visitation rights. Nor is the issue
the relationship between Alison D. and Virginia
M. 77 N.Y.2d 651, *658; 572 N.E.2d 27, **30; 1991
N.Y. LEXIS 634, ***17; 569 N.Y.S.2d 586 Rather,
the sole issue is the relationship [***18]
between Alison D. and A.D.M., in particular
whether Alison D.'s petition for visitation
should even be considered on its merits. I would
conclude that the trial court had jurisdiction to
hear the merits of this petition.
The relevant
facts are amply described in the Court's opinion.
Most significantly, Virginia M. agrees that,
after long cohabitation with Alison D. and before
A.D.M.'s conception, it was "explicitly
planned that the child would be theirs to raise
together." It is also uncontested that the
two shared "financial and emotional
preparations" for the birth, and that for
several years Alison D. actually filled the role
of coparent to A.D.M., both tangibly and
intangibly. In all, a parent-child relationship
-- encouraged or at least condoned by Virginia M.
-- apparently existed between A.D.M. and Alison
D. during the first six years of the child's
life.
While
acknowledging that relationship, the Court
nonetheless proclaims powerlessness to consider
the child's interest at all, because the word
"parent" in the statute imposes an
absolute barrier to Alison D.'s petition for
visitation. That [*659] same conclusion would
follow, as the Appellate Division dissenter
noted, [***19] were the coparenting relationship
one of 10 or more years, and irrespective of how
close or deep the emotional ties might be between
petitioner and child, or how devastating
isolation might be to the 77 N.Y.2d 651, *659;
572 N.E.2d 27, **30; 1991 N.Y. LEXIS 634, ***19;
569 N.Y.S.2d 586 child. I cannot agree that such
a result is mandated by section 70, or any other
law.
Domestic
Relations Law @ 70 provides a mechanism for
"either parent" to bring a habeas
corpus proceeding to determine a child's custody.
Other State Legislatures, in comparable statutes,
have defined "parent" specifically
(see, e.g., Cal Civ Code @ 7001 [defining
parent-child relationship [**31] as between
"a child and his natural or adoptive
parents"]), and that definition has of
course bound the courts (see, <=120> Nancy
S. v Michele G., 228 Cal App 3d 831, 279 Cal Rptr
212 [Mar. 20, 1991] [applying the statutory
definition]). Significantly, the Domestic
Relations Law contains no such limitation.
Indeed, it does not define the term
"parent" at all. That remains for the
courts to do, as often happens when statutory
terms are undefined.
The majority
insists, however, that, the word
"parent" in this case can only be read
to mean biological parent; the response "one
fit parent" [***20] now forecloses all
inquiry into the child's best interest, even in
visitation proceedings. We have not previously
taken such a hard line in these matters, but in
the absence of express legislative direction have
attempted to read otherwise undefined words of
the statute so as to effectuate the legislative
purposes. The Legislature has made plain an
objective in section 70 to promote "the best
interest of the child" and the child's
"welfare and happiness." 77 N.Y.2d 651,
*659; 572 N.E.2d 27, **31; 1991 N.Y. LEXIS 634,
***20; 569 N.Y.S.2d 586 (Domestic Relations Law @
70.) Those words should not be ignored by us in
defining standing for visitation purposes -- they
have not been in prior case law.
Domestic
Relations Law @ 70 was amended in 1964 to broaden
the category of persons entitled to seek habeas
corpus relief (L 1964, ch 564, @ 1). Previously,
only a husband or wife living within the State,
and legally separated from the spouse, had
standing to bring such a proceeding. The courts,
however, refused to apply the statute so
literally. In amending the statute to make
domicile of the child the touchstone, and
eliminate the separation requirement, the
Legislature acted to bring section 70 into
conformity with what the courts were already
doing (see, Mem of Joint [***21] Legis Comm on
Matrimonial and Family Laws, 1964 McKinney's
Session Laws of NY, at [*660] 1880 [amendment
deleted "needless limitations which are not,
in fact, observed by the Courts"]).
This amendment
to bring the statute into line with the practice
reflects Supreme Court's equitable powers that
complement the special habeas statute (see,
<=121> Langerman v Langerman, 303 NY 465,
471; see generally, NY Const, art VI, @ 7 [a]).
In <=122> Finlay v Finlay (240 NY 429,
433), this Court established that where the
section 70 writ is denied to the petitioner
seeking custody "there would remain his
remedy by petition to the chancellor or to the 77
N.Y.2d 651, *660; 572 N.E.2d 27, **31; 1991 N.Y.
LEXIS 634, ***21; 569 N.Y.S.2d 586 court that has
succeeded to the chancellor's prerogative [and]
nothing in the habeas corpus act affects that
jurisdiction." In such an action, the
Chancellor "may act at the intervention or
on the motion of a kinsman * * * but equally he
may act at the instance of any one else."
<=123> (240 NY, at 434.) Jurisdiction rests
on the parens patriae power -- concern for the
welfare of the child (id.; see also, <=124>
Matter of Bachman v Mejias, 1 NY2d 575, 581).
As the Court
wrote in <=125> Matter of Bennett v
Jeffreys (40 NY2d 543, 546) -- [***22] even in
recognizing the superior right of a biological
parent to the custody of her child -- "when
there is a conflict, the best interest of the
child has always been regarded as superior to the
right of parental custody. Indeed, analysis of
the cases reveals a shifting of emphasis rather
than a remaking of substance. This shifting
reflects more the modern principle that a child
is a person, and not a subperson over whom the
parent has an absolute possessory interest."
Apart from
imposing upon itself an unnecessarily restrictive
definition of "parent," and apart from
turning its back on a tradition of reading of
section 70 so as to promote the welfare of the
children, in accord with the parens patriae
power, the Court also overlooks the significant
distinction between visitation and custody
proceedings.
77 N.Y.2d 651,
*660; 572 N.E.2d 27, **31; 1991 N.Y. LEXIS 634,
***22; 569 N.Y.S.2d 586 While both are of special
concern to the State, custody and visitation are
significantly different (see, <=126> Weiss
v Weiss, 52 NY2d 170, 175; <=127> Matter of
Ronald FF. v Cindy GG., 70 NY2d 141, 144). n2
[**32] Custody disputes implicate a parent's
right to rear a child -- with the child's
corresponding right to be raised by a parent
(see, <=128> Matter of Bennett v Jeffreys,
40 NY2d, at 546, [*661] [***23] supra).
Infringement of that right must be based on the
fitness -- more precisely the lack of fitness --
of the custodial parent.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n2 The
majority's opinion rests on a fundamental
inconsistency. It cannot be that visitation is
the same as custody -- "a limited form of
custody" (majority opn, at 656) -- and yet
at the same time different from custody in that
the "extraordinary circumstances"
doctrine is inapplicable ( <=129> Matter of
Ronald FF. v Cindy GG., 70 NY2d 141; see also,
<=130> Matter of Mark V. v Gale P., 143
Misc 2d 487, 489).
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
Visitation
rights also implicate a right of the custodial
parent, but it is the right to choose with whom
the child associates (see, <=131> Matter of
77 N.Y.2d 651, *661; 572 N.E.2d 27, **32; 1991
N.Y. LEXIS 634, ***23; 569 N.Y.S.2d 586 Ronald
FF. v Cindy GG., 70 NY2d, at 144, supra). Any
burden on the exercise of that right must be
based on the child's overriding need to maintain
a particular relationship (see, <=132>
Weiss v Weiss, 52 NY2d, at 174-175, supra).
Logically, the fitness concern [***24] present in
custody disputes is irrelevant in visitation
petitions, where continuing contact with the
child rather than severing of a parental tie is
in issue. For that reason, we refused to extend
the Bennett "extraordinary
circumstances" doctrine -- which relates to
the fitness of the custodial parent -- to
visitation petitions ( <=133> Matter of
Ronald FF. v Cindy GG., 70 NY2d 141, supra).
The Court now
takes the law a step beyond Ronald FF. by
establishing the Bennett "extraordinary
circumstances" test as the only way to reach
the child's best interest in a section 70
proceeding. In that Ronald FF. determined that
extraordinary circumstances are irrelevant in the
visitation context, our holding today thus firmly
closes the door on all consideration of the
child's best interest in visitation proceedings
such as the one before us, unless petitioner is a
biological parent.
Of course there
must be some limitation on who can petition for
visitation. Domestic Relations Law @ 70 specifies
that the person must be the child's
"parent," and the law additionally
recognizes certain rights of biological and legal
parents. Arguments that every dedicated caretaker
[***25] could sue 77 N.Y.2d 651, *661; 572 N.E.2d
27, **32; 1991 N.Y. LEXIS 634, ***25; 569
N.Y.S.2d 586 for visitation if the term
"parent" were broadened, or that such
action would necessarily effect sweeping change
throughout the law, overlook and misportray the
Court's role in defining otherwise undefined
statutory terms to effect particular statutory
purposes, and to do so narrowly, for those
purposes only.
Countless
examples of that process may be found in our case
law, the Court looking to modern-day realities in
giving definition to statutory concepts. (See,
e.g., <=134> People v Eulo, 63 NY2d 341,
354 [defining "death" for purposes of
homicide prosecutions].) Only recently, we
defined the term "family" in the
eviction provisions of the rent stabilization
laws so as to advance the legislative objective,
making abundantly clear that the definition was
limited to the statute in issue and did not
effect a wholesale change in the law (see,
<=135> Braschi v Stahl Assocs. Co., 74 NY2d
201, 211-213).
[*662] In
discharging this responsibility, recent decisions
from other jurisdictions, for the most part
concerning visitation rights of stepparents, are
instructive (see, e.g., <=136> Gribble v
Gribble, 583 P2d 64 [Utah]; <=137> Spells v
Spells, 250 Pa Super 168, 378 A2d 879). [***26]
For example in <=138> Spells (250 Pa Super,
at 172-173, 378 A2d, at 881-882), the court
fashioned a test for "parental status"
or "in loco parentis" requiring that
the petitioner demonstrate actual assumption of
the parental role and discharge of parental
responsibilities. It should be required that the
77 N.Y.2d 651, *662; 572 N.E.2d 27, **32; 1991
N.Y. LEXIS 634, ***26; 569 N.Y.S.2d 586
relationship with the child came into being with
the consent of the biological or legal parent,
and that the petitioner at least have had joint
custody of the child for a significant period of
time (see, Rethinking Parenthood as an Exclusive
Status, op. cit., <=139> 70 Va L Rev, at
945-946). Other factors likely should be added to
[**33] constitute a test that protects all
relevant interests -- much as we did in Braschi.
Indeed, the criteria described by the Court in
Braschi to be applied on a case-by-case basis
later became the nucleus of formal standards
(see, 9 NYCRR 2520.6).
It is not my
intention to spell out a definition but only to
point out that it is surely within our competence
to do so. It is indeed regrettable that we
decline to exercise that authority in this
visitation matter, given the explicit statutory
objectives, the [***27] courts' power, and the
fact that all consideration of the child's
interest is, for the future, otherwise absolutely
foreclosed.
I would remand
the case to Supreme Court for an exercise of its
discretion in determining whether Alison D.
stands in loco parentis to A.D.M. and, if so,
whether it is in the child's best interest to
allow her the visitation rights she claims.
77 N.Y.2d 651,
*662; 572 N.E.2d 27, **33; 1991 N.Y. LEXIS 634,
***27; 569 N.Y.S.2d 586 Order affirmed, with
costs.
LEVEL 1 - 3 OF
20 CASES
In the Matter of
Florence Gross, petitioner, Edward Gross,
appellant, v Sandra Siegman, et al., respondents.
95-07454
SUPREME COURT OF
NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
642 N.Y.S.2d 44;
1996 N.Y. App. Div. LEXIS 4703
March 7, 1996,
Argued April 29, 1996, Decided
NOTICE: [*1] THE
LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO
CHANGE PENDING RELEASE OF THE FINAL PUBLISHED
VERSION.
PRIOR HISTORY:
In a proceeding pursuant to Domestic Relations
Law @ 72 to obtain visitation rights, the
petitioner Edward Gross appeals from an order of
the Family Court, Nassau County (Feiden, J.),
dated June 22, 1995, which granted the motion of
the respondents to dismiss that branch of the
proceeding which sought visitation rights for the
petitioner Edward Gross.
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