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WHAT IS A FAMILY, ANYWAY?

DOES MOTHER KNOW BEST OR SHOULD WE LEAVE IT TO

BEAVER?W. DENNIS DUGGAN, J.F.C.

© March, 2002

Courts all across the country(including the Supreme Court of theUnited States) are struggling with thequestion of what exactly is a “family” forpurposes of determining custody andvisitation rights of children or to children.I say “of children” and “to children”because, if you look at this issue as beingone of children’s rights, you can come upwith different answers than if you considerit just as a question of parents’ rights.

The Supreme Court wandered intothis thicket recently in Troxel v Granville(530 U.S. 57 [2000]). In Troxel, theCourt held that for a grandparentvisitation statute to meet constitutionalmuster, it must do at least three things.First, the burden of proof must be on thegrandparent. Second, it must presumethat a fit parent makes decisions that arein the child’s best interest. Third, it mustgive special weight to the parent’s

decision. Post-Troxel, state courts have

applied the Supreme Court’s ruling in fourbasic ways. Most courts have saved theirstate’s legislation from constitutionalinfirmities by reading the Troxel factorsinto their law. (This seems to be a type ofjudicial legislation that doesn’t raise theire of the court critics that bemoan activistjudges) A second, smaller group of statecourts have read into their own statutes arequirement that the grandparent mustprove that the child would suffer physicalor emotional harm if visitation was notgranted. This approach seems designedto meet the requirement that stateintrusion into a fundamental right, in thiscase the parent’s right to raise his or herchild, requires a compelling state interest,which can only be to protect a child fromharm. However, Troxel does not requiresuch a showing. It is hard to see how this

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actual harm finding requirement wouldwork in the real world. Say a grandparentpetitions for visitation. The court says tothe grandparent, you must show harm tothe child if the child does not visit withyou. The grandparent meets her burdenand is awarded one weekend eachmonth. What about the other twenty-eightdays of the month? Why is the child sosafe or well off during that period? Howcould a weekend a month make adifference one way or another if actualharm is the threshold?

A third group of states hasessentially ignored Troxel. Oregon, forexample, has an extensive statutoryframework to address the issue. (ORS§109.119 [3] [a]) The Pennsylvaniacourts have held that the common lawdoctrine of in loco parentis provides acommon law basis to insure that childrenhave continued contact with extended kin.Their cases hold that this doctrineprovides all the compelling basis neededfor state intervention into the parent-childunit. (See, T.B. v L.R.M, 2000 PA, Lexis2753 [12-28-01]) Both New Jersey andWisconsin have long held that“psychological parents” have custodialstanding. (A.F. v. D.L.P., 339 NJ Super312; H.S. v. H.K., 193 Wis. 2d 649)

A fourth group has refused toconduct constitutional rehabilitativesurgery and just ruled their state’s law tobe either facially or as appliedunconstitutional. (See, for example, J.S.v. D.W., 2001 Lexis 188, Court of CivilAppeal of Alabama [May 4, 2001]; Santiv. Santi, 633 NW2d 312, Supreme Courtof Iowa, [September 6, 2001]

The New York Courts, on the otherhand, have painted themselves into fourideological corners on this issue. It willprobably require a judicial bypassoperation of stare decisis if our state is to

be brought into the mainstream of what istaking place in other parts of the country. (And in other parts of the world.Australia, is one example. See, AustraliaFamily Law Reform Act of 1995 ) There1

are five appellate cases and three triallevel decisions in this State which drawthe perimeters of this issue. The Court ofAppeals has spoken in Allison D. v.Virginia M. ; Ronald FF. v. Cindy GG. ;2 3

and Bennett v. Jeffreys ; In Bennett v.4

Jeffreys, the Court held that compellingcircumstances can justify the award ofcustody of a child to a third person, suchas a grandparent. Compell ingcircumstances could be abuse, neglect,abandonment or extended placement of

1. For proof that our Court of Appeals canmake a judicial stretch when it wants, to seeMatter of Jacob, 86 NY2d 651, where it heldthat, at least in the case of adoptions, a childcan have two mothers or two fathers.Regardless of how you view this issue as amatter of statutory construction, many peoplebelieve that this is good family law. TheAmerican Academy of Pediatrics has justgiven its imprimatur to same sex adoptions.(New York Times, February 4, 2002, at A21)At the other extreme, see the Supreme Court’sdecision in Michael H. v Gerald D. (491 US110 [1989]) In Michael D, the court held thatas a matter of California substantive law, aDNA-established biological father had norights to his child if the mother was marriedand living with her husband at the time ofconception. California law made this anirebuttable presumption of paternity.

77 NY2d 651 [1991].2

70 NY 2d 141 [1987].3

40 NY 2d 543 [1976]4

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the child with the third person.5

In Allison D., a lesbian relationshipcase, the court held that a non-parentcould not seek custody or visitation whenthere was a fit parent present to raise thechild. The majority held that the statuteonly allows parents to petition for custodyor visitation and the intimate partner ofthe mother was simply not a parent. Indissent, Judge Kaye observed thatnowhere has the legislature defined theword “parent”. Judge Kaye would use theCourt’s common law interpretive functionto fill in the interstices where thelegislature has left ambiguity. She wouldhold that de facto parents are to beincluded within the definition of a parentand that holding so would allow the courtto carry out its statutory duty to makedecisions that are in the best interest ofthe child.

In Ronald FF., the court held thatthe Bennett v. Jeffreys test did not applyto visitation cases where a non-parentwas the applicant. Bennett v. Jeffreysrequired, in essence, the presence of anunfit parent before the state couldimpinge on the custodial authority of aparent. In a visitation case, there was afit parent in place so the state could notintrude to award visitation which,according to the Court, is just a sub-

species of custody.The Appellate Divisions have also

taken a crack at this issue, with differingresults. In Jean Maby H. v. Joseph H. ,6

the Second Department applied anestoppel theory to prevent a mother fromcutting off visitation of the child by thechild’s non-genetic but psychologicalfather. Meanwhile, the Third Department,in Multari v. Sorell, held that a boyfriend7

with a six year relationship with a childcould not use estoppel to get visitationwith the child. The court took the fairlyunusual step of delving into the briefs ofthe parties in the Ronald FF. case toprove that the Court of Appeals hadsquarely before it, in that case, theestoppel issue. Therefore, according tothe Multari Court, even though the Courtof Appeals did not rely on the theory ofestoppel in its decision, it really hadforeclosed the use of estoppel as a wayfor a non-parent to gain visitation. Onereason supporting the Court’s holding thatestoppel was not available to Multari,was that the mother never actually heldher boyfriend out to be the child’s father.The bio-father was known to everyone butwas not in the child’s life. This “holdingout” factor would apparently reconcile thisholding with the Third Department’sdecision in Mancinelli v. Mancinelli. In8

that case, the Court held that despite anHLA test establishing non-paternity, thehusband was estopped from denying histwo-year-long “de facto” fatherhood of achild born (but not conceived) during themarriage in an attempt to escape his child

5. Bennett v. Jeffreys was only a modestextension of prior case law. In holding thatextended placement of a child with a thirdperson can constitute extraordinarycircumstances, Bennett v. Jeffreys reallyestablished the concept that “psychologicalparents” have standing to petition for custody,though the Court of Appeals would probablynot agree that that is what they did or meant todo.

246 AD2d 282 [1998]6

___ AD2d ___[October 4, 2001]7

203 AD2d 634 [needs year]8

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support obligation.You may have noticed that in the

above decisions there is not muchdiscussion about what would actually bein the child’s best interest. If you are soinclined, look at three child-focuseddecisions that reach different results insimilar situations each issued by trialcourts:( J. C. v. C.T. ; Matter of9

Christopher S. v. AnnMarie S. and10

Webster v. Ryan ) In J.C., Judge11

Cooney of Westchester County FamilyCourt allowed visitation in a lesbianrelationship case based on an estoppeltheory. In Christopher S., JudgeAmodeo of Dutchess County FamilyCourt ruled that if estoppel could be usedto establish paternity of a non-biologicalfather, its use should be allowed in acustody case as well. In Webster v.Ryan, this writer held that a child has aconstitutional right to maintain contactwith a person with whom the child hasestablished a parent-like relationship.The J. C. and Webster cases are both onappeal, so stay tuned.

All of the appellate cases in thisstate, in the other forty-eight states and inthe Supreme Court that address non-parent relations with children, are focusedfrom the parents’ point of view, not thechild’s. In passing, some judges havenoted this. In Gerald D., Judge Scaliastated: “We have never had the occasionto decide whether a child has a libertyinterest, symmetrical with that of herparent, in maintaining her filialrelationship.” (FN 1, at 110) In Troxel,

Judge Stevens stated:Cases like this do notpresent a bipolar strugglebetween the parents andthe State over who has finalauthority to determine whatis in a child’s best interests.There is at a minimum athird individual, whoseinterests are implicated inevery case to which thestatute applies–the child.”** *While this Court has notyet had occasion toelucidate the nature of achild’s familial or family-likebonds * * * it seems to meextremely likely that, to theextent parents and familiesh a v e f u n d a m e n t a lrelationships, so, too, dochildren have interests, andso, too, must their interestsbe balanced in theequation.” (At 86-88[citations omitted].)

So what would a bipolar strugglelook like in real life, say, between amature fourteen-year old boy, Tommy,and his mom as they discuss the break-up of her five-year relationship with Ted?It might sound like this.

“Well, how do you like this! Ted is takingme to Family Court to try to get visitationrights to you.”

“What’s wrong with that, Mom? I likeTed.”

“We’ve been over this before Tommy.I’ve told you that Ted has no legal rightsover you. I’m your mother and that’s allthere is to it.”

184 Misc 2d 935 [2000]9

173 Misc 2d 824 [1997]10

189 Misc 2d 86 [2001]11

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“That’s all there is to what Mom?”: “Whatabout what I want?”

“Look Tommy, I’m your mother and I’lldecide what’s best for you. Besides, Iknow what my rights are. I read an articlein Parents Today magazine and itdescribed this new Supreme Courtdecision that gives my judgment priority.I have fundamental parental rights. Italso said that the New York Courts giveme even more rights. Ted doesn’t have aleg to stand on.”

“So let’s see Mom, what part of yourparental judgment was best for me? Youmean the part where you went off toAtlantic City for a three-day weekend andcame back pregnant with me and then Inever had a father because we never sawthe gambling man again.”

“Tommy, we’ve been through this before.I was young and I made a mistake.”

“Oh great Mom, so now I’m a mistake.”

“That’s not fair Tommy, I didn’t meant itthat way.”

“Well Mom, let me tell you what’s not fair.It’s not fair that I don’t have a father andthat’s your fault not mine. And then youfound Ted. And you know Mom, he wasgood to us. He was good to me. He tookme fishing. He fixed my bike. He taughtme how to hit and catch a baseball. Hetook me to Boys Scouts and camping anddidn’t we all have fun when we went onvacation together? It wasn’t my fault,Mom, that you and Ted broke up. Sowhat am I supposed to do now? Wait foryou to find another boyfriend and hopehe’s as good as Ted? Do I get to pickyour new boyfriend? Or is that another

one of your fundamental rights? Well,Mom, I don’t want to hear about yourfundamental rights to have a newboyfriend. What about my fundamentalright to have a father. You know Mom,that’s what’s in the play book. You knowthe part where they talk about a family.There’s suppose to be a marriage beforethat. You know, the part about you andmy dad promising to love and cherisheach other, in sickness and in health tilldeath do you part. What happened tothat part? That’s the part that’s meant forthe kids. That’s the basic contract youwere suppose to sign before you had me.But noooo!, you were young and youmade a mistake and I’m just a weekendwonder...or am I a mistake Mom?”

“Tommy, please, this isn’t fair, pleasestop.” “Well Mom, I’m confused here. Why doyou have a right to say that I can’t seeTed and I don’t have any rights at all.You can always find a boyfriend butwhere do I find another father. Youscrewed up the first time, Mom, so whydon’t I get the chance to pick this time? Icouldn’t do any worse than you did with“Mr. Five Card Stud.” Mom. I don’t reallycare that Ted is not my real dad. He wasa real dad to me when it counted becausehe was there for me and he’s the onlyone who ever was. I don’t want to startlooking for another Dad now. I shouldn’thave to wait for you to find me anotherone. I want Ted to be my dad and I thinkthat’s my fundamental right and if the lawdoesn’t recognize that, well, then, the lawis an ass!”

“Tommy, you’ve been reading too muchCharles Dickens for your own good.”