Same-Sex Support Denied in NY Family Court

Cited: Law.com

It seems that a woman in New York cannot force her former same-sex partner to pay child support because the New York Family Court does not have jurisdiction. That is what the New York state appeals panel ruled with a 3-2 ruling. The reason is that New York only has proceedings that determine parentage on paternity proceedings, which means they can only determine who the father is and not the mother.

No similar vehicle exists for determining a child’s mother and, therefore, for the Family Court to order a woman with no other biological or legal connection to a child to pay for his or her support, according to an Appellate Division, 2nd Department, panel.

The “plain language of numerous provisions of Family Court Act article 5 [regarding paternity proceedings] clearly and unambiguously indicates that a proceeding thereunder will only involve a controversy concerning a male’s fatherhood of a child,” Justice Joseph Covello wrote for the majority in H.M. v. E.T., 2007-09323.

“If the failure of Family Court Act article 5 to provide a vehicle for resolving the type of controversy involved here is to be redressed, it is a matter to be undertaken by the Legislature — which ‘created’ and ‘wholly control[s]‘ paternity proceedings — and not the courts.”

Justices Daniel D. Angiolillo and Cheryl E. Chambers concurred. Justices Ruth C. Balkin and Steven W. Fisher dissented, in an opinion by Balkin. Balkin contended that the Family Court has jurisdiction to hear H.M.’s petition and that E.T. should be equitably estopped from denying her parentage.

“H.M. is not seeking a declaration of ‘maternity’ or that E.T. be declared the child’s biological mother … rather, she is seeking a determination that E.T. is an individual responsible for the support of the child, in other words, that she is a support parent,” Balkin wrote.

“Consonant with the constitutional, statutory, and precedential grant to the Family Court of exclusive original jurisdiction to entertain such parentage applications, we believe H.M.’s petition is precisely within the class of proceedings that the Family Court is authorized and competent to hear.”

Balkin added that the majority’s reading of the Family Court Act leads to an “incongruous” result. “[A] biological mother can seek to establish the paternity of her child,” she noted, “but a biological father could not avail himself of the same procedural vehicle to identify the mother of a child abandoned to his care.”

The decision does not address whether men in same-sex relationships could pursue a paternity proceeding to determine a partner’s fatherhood. The majority and dissent also disagreed as to whether the Supreme Court remains a viable forum for mothers such as H.M.

The case involves a relationship that began in 1989 and a child who was born in 1994. Petitioner H.M. and respondent E.T. neither married nor became civil partners. During the first year of their relationship, they decided to conceive and raise a child together. After 12 attempts, H.M. became pregnant by sperm from an unknown donor injected by E.T. In September 1994, she gave birth to a son. Less than four months later, the relationship ended.

H.M. moved to Canada to live with her parents and raise her son and, in October 2006, filed a Canadian “support application” seeking a declaration of E.T.’s parentage and an order requiring her to pay support.

The case was transferred pursuant to the Uniform Interstate Family Support Act to Rockland County Family Court. Citing the “unusual” circumstances, Judge Rachelle C. Kaufman told the parties that the petition would be treated as a paternity petition. The judge then granted E.T.’s motion to dismiss, holding that a woman could not be deemed the “father” of a child.

In September 2007, Family Court Judge William P. Warren ordered a hearing to determine if E.T. “should be equitably estopped [from denying] her responsibility to provide support to the subject child.”

It is up to Legislature to change the letter law!

E.T. appealed that order, and on May 28 the split Brooklyn panel reversed and again dismissed the petition.

“[W]e are sensitive to our obligation to liberally construe the provisions of Family Court Act article 5 [which was] enacted by the Legislature to protect the welfare of children born out-of-wedlock,” Justice Covello wrote. “However, since … those provisions contain clear and unambiguous language indicating that a proceeding pursuant to Family Court Act article 5 is only a vehicle for resolving a controversy concerning a male’s fatherhood of a child, there is no occasion for construing those provisions and, hence, no basis for interpreting them, in a manner permitting a proceeding pursuant to Family Court Act article 5 to be used as a vehicle for resolving some other type of controversy.”

Representatives for H.M. say they are disappointed in the decision, that it adversely affects the rights of children in New York in general, and that their client will review her options including appealing to the Court of Appeals. The representatives of E.T. think that the minority’s opinion will create a a set of “second-class” parents who cannot get visitation but are required to pay support.

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My Take: Love is what makes a family a family. It should not make any difference whether a child’s parents are the same sex or not. If two people decide to have and raise a child together as parents then both are responsible to support that child until that child reaches 18. Admittedly, same-sex couples cannot have children the same way that opposite sex couples can. However, they can raise children the same way.

I doubt that the solution to child support for same-sex couples is going to be resolved quickly. The reason for that is that there is too much controversy over same-sex marriages. That controversy is based in religion. In fact, the laws that most of the world have are based on religious beliefs. In the US, we have a practice of keeping religion and law separate, which is practically impossible to do because our laws come from our religious beliefs as well.

On the other hand, if we can go so far as to take the word “God” out of the Pledge of Allegiance (which I think is stupid) then we can take the religion out of the law surrounding marriage. It is a simple matter of changing the wording of the law from the “union of a man and a woman” to the “union of two individuals”.

Then again, I suppose it would do no good for E.T. to dress up like a male executive because it would look more like a Halloween party costume than anything else would. Of course, if they did wear sexy adult Halloween costumes in court it might just distract the judge long enough for him to make a decision in H.M. ’s favor..

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