Beyond biological boundaries

In drafting legislation regarding parental rights and obligations, did the Legislature envision societal changes whereby the definition of “parent” included persons other than the biological mother or father? Are the courts bound by the definition of a common term contemporaneous with the enactment of the statute?

Search throughout the New York Domestic Relations Law or Family Court Act and nowhere is “parent” defined. (By statute, an adult unmarried person or an adult husband and his adult wife may adopt another person, and as the “adoptive parent,” thereby acquire all rights and obligations of “parent.”1) Black’s Law Dictionary has no less than 24 categories of parent, and in addition, the following definition of “parent:”2
“1.The lawful father or mother of someone. In ordinary usage, the term denotes more than responsibility for conception and birth. The term commonly includes (1)either the natural father or the natural mother of a child, (2)the adoptive father or adoptive mother of a child, (3)a child’s putative blood parent who has expressly acknowledged paternity, and (4)an individual or agency whose status as guardian has been established by judicial decree.”

Contrast this with the singular definition of “parent” of Black’s Law Dictionary( 4th ed, 1968):
“The lawful father or mother of a child. One who procreates, begets or brings forth offspring.”.

Section 413 of the Family Court Act (FCA) sets forth the parental duty of support:
“Parents (emphasis added) of a child under the age of 21 are chargeable with the support of such child.”

Financial responsibility for children finds its roots in the common law that only imposed paternal obligations; a mother had secondary responsibility to provide her children with “necessaries,” i.e. food, shelter and clothing.3 The paternal obligation extended to in-wedlock children only; support of out-of-wedlock children fell squarely on the shoulders of the mother. Not until the 1960s did the New York legislature make both parents severally liable for the support of out of wedlock children; FCA Article 5 section 511 provides the Family Court with exclusive jurisdiction “…to establish paternity and, in any such proceedings in which it makes a finding of paternity, to order support and make orders of custody or of visitation as set forth in this article.” Twenty years later, just prior to the enactment of the Child Support Standards Act (1989), Section 413 of the FCA was modified substituting “parents” for “father” for support purposes in an apparent response to equal protection arguments made in the courts that classifying child support obligations based upon a parent’s sex was unconstitutional (and thereby gratuitously removing the distinction of children born “in” or “out” of wedlock).4 .

Fast forward twenty years to 2009.
The New York Court of Appeals has determined that the Domestic Relations Law does not authorize same sex couples to marry in New York.5 However, same sex marriages valid in sister states are recognized as valid marriages by New York under comity and common law doctrine, provided that no positive law of New York bars the (out of state) marriage or that the marriage is abhorrent to New York public policy (i.e. polygamy or incest).6 As early as 1991, Judge Judith Kaye, in a lengthy dissent, recognized that an estimated 15.5 million children do 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.7 Child support issues arise within this myriad of relationships today and the courts, in making support determinations, must reason and decide though caught in the time warp of legal precedent that has lagged in pace with familial evolution. Some courts, utilizing the Parens Patriae power in interpreting the statute, have broadly defined “parent” to include parties with no biological or legal ties to a child under a “ best interests of the child” analysis for support purposes while others look to the historical context of the legislation for definition, legislative intent and precedent to define “parent.” (Parens Patriae: “1.The state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.”8).

Once again, in the Appellate Division, (Third Department), the court sustained the trial conviction for Criminally Negligent Homicide as well as other criminal charges. In their decision, the Third Department bootstrapped the seatbelt and licensing requirement with the excessive speed; however, the Court of Appeals rejected the attempt to confer liability based on the licensing status of the driver and the failure of the occupants to wear seatbelts. In simple terms, a case of excessive speed, even in a tragic circumstance, is legally insufficient to sustain the felony charge for criminally negligent homicide.3 Further, the Court of Appeals rejected the alleged relevance of the driver’s license status on the issue of causation as it pertained to the accident

A case in point, out of the Appellate Division, Second Department is H.M. (Anonymous) v. E.T. (Anonymous), 881 N.Y.S.2d 211, 2009 N.Y.Slip Op.04240, May 26, 2009. The case emanated from the Rockland County Family Court where pursuant to the Uniform Interstate Family Support Act (UIFSA) the biological mother residing in Canada, filed a child support application seeking to a) have her former same-sex partner (a resident of Rockland county) adjudicated a “parent” of the child and b) obtain an award of child support retroactive to the child’s birth. The parties were never married, nor had they entered into a civil union. They had cohabitated in New York since 1989, and in September 1994, H.M. gave birth to a child impregnated by an anonymous sperm donor. In January 1995, E.T. allegedly ended the relationship and H.M relocated with the child to Canada.

The majority opinion framed the issue as one of subject matter jurisdiction: whether the Family Court, a court of limited jurisdiction, has the authority to hear a proceeding brought by a birth mother against “… a woman having no biological or legal connection to the subject child” adjudicated a “parent” of that child and therefore whether the former same-sex partner should be required to support that child.

The Family Court in a UIFSA proceeding is required to apply the substantive and procedural laws as it would had the matter originated in New York and can only exercise those powers given to the Court by the legislature and effectuate remedies pursuant thereto. Since the only statutorily “similar” proceeding under New York law to determine a “parent” for child support purposes is Article 5 of the Family Court Act (FCA) which governs paternity proceedings, the majority determined that any relief for this applicant must be found within an Article 5 proceeding.. Section 511 of the FCA gives exclusive jurisdiction to the Family Courts of this state to establish “paternity,” and here, the Court took judicial notice of Black’s Law Dictionary definition of “paternity” as “the state or condition of being a father.”9 Further, FCA section 532(a) authorizes the Court in such proceedings to order a genetic marker test of the alleged father to determine if he is or is not the father of the subject child; and if not, pursuant to FCA section 541, the action is dismissed or if the father, FCA section 542(a) requires the court to issue an order of filiation, the declaration of paternity.

In the recent past, alleged fathers without a declaration of paternity have been obligated by the court pursuant to FCA Article 5 to support a child under the doctrine of “equitable estoppel” and utilizing a “best interests of the child” analysis. Equitable estoppel precludes a party from asserting a right if by act or deed that party led another to form a reasonable belief the right would not be asserted and a loss or prejudice would result to the party who relied on such belief. Here, E.M. alleged that E.T. promised she would act as a “parent” to the child and in reliance on the belief , became artificially inseminated and gave birth , and that E.T. for a brief period of approximately three months did assume the role of “parent.” The majority concluded that to permit the birth mother to assert equitable estoppel as a defense to dismissal of her petition to declare her same sex partner a “parent” as defined under present law (and thereby obligated to support the subject child) “…would be tantamount to the Family Court granting equitable relief” in constitutional and statutory defiance of its authorized powers. The factual setting here differs from the cases where paternity by estoppel had been effectively raised as a defense to deny parentage (and support awarded), because the defense was used in the context of a paternity proceeding authorized by statute. New York has no proceeding by which a woman can be declared a “parent” other than through an adoption proceeding and the support obligations of FCA Article 4 are thereby not applicable.10

The petition was dismissed. What recourse for the birth mother to obtain child support ? The dissent raised the issue for the court’s consideration (and the legislature) that by denying this petition, the birth mother effectively has been denied support not withstanding the Parens Patriae power of the judiciary. The alternative forum indicated by the majority, the Supreme Court, is as a practical matter a dead end. Originating a support application under UIFSA in the Supreme Court (a court of general jurisdiction with equitable powers) is of no value to this petitioner or others like her since the Supreme Court would be required to refer the matter to the Family Court as the UIFSA designated tribunal and the statutory analysis as followed by this Court would govern.11 Whether this statutory construction will survive an Equal Protection challenge is not clear as the Majority did not address the constitutionality of the statute. Though cognizant of their duty “to liberally construe the provisions of the FCA article 5 … enacted … to protect the welfare of children born out of wedlock, … (and) the failure of the FCA to provide a vehicle for resolving this type of controversy … (it) is a matter to be undertaken by the Legislature – which ‘created’ and ‘wholly contol(s)’ paternity proceedings.” For the time being, women who give birth outside of statutory approved relationships do so at their own risk and that of their children.

Nancy E. Gianakos is a matrimonial and family law practitioner, Of Counsel, to Albanese & Albanese, Garden City, NY. She is a member of the NYSBA, Nassau County Matrimonial and Familly Law Committees, the American Family Law Inns of Court and the New York Association of Collaborative Professionals. For more information and articles published by Ms. Gianakos go to

1. Domestic Relations Law section 110. 2. Black’s Law Dictionary, 8th ed., 2004. 3. See McKinney’s Practice Commentaries, Family Court Act section 413, 2008 by Prof. Merril Sobie. 4. See McKinney’s Practice Commentaries, Family Court Act section 413, 1999 by Douglas J. Barstow. 5. Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770 (2006). 6. Beth R. v. Donna M., 19 Misc. 3d724, 853 N.Y.S.2d 501 (Sup. Ct., New York County, 2008). 7. Matter of Alison D. v. Virginia M., 77 N.Y.2d651,569 N.Y.2d586 (N.Y.Ct of App). 8. Black’s Law Dictionary, 8th ed., 2004. 9. Black’s Law Dictionary, 8th ed., 2004. 10. Distinguished from support obligations of a child’s legal guardian who need not be a “parent.” 11. Matter of Stom v. Lomtevas, 28 A.D.3rd at 780, 814 N.Y.S.2d 679.