In April of 2013, Judge Theresa Whelan, sitting in the Family Court in Suffolk County, was presented with a same sex visitation case. The non-biological parent brought a petition for custody and/or visitation regarding a child born to her former same-sex partner. The respondent in the case, the biological parent, claimed the same-sex partner could not be considered a “parent” for purposes of a visitation or custody proceeding pursuant to the New York Family Court Act, Article 6. She claimed pursuant to this law, the same-sex partner was not a parent under the purview of the statute.
Previous Child Support Proceeding
The respondent, who claimed her former same-sex partner was not an appropriate parent to receive visitation, under New York Law, had previously brought a petition for child support in the Family Court. In that petition, she claimed her former same sex partner should be declared a parent for purposes of establishing she was responsible for paying child support. Now the biological parent asserts the opposite position.
Judge Whelan found the inconsistent positions would not be countenanced by the court. She found under the theory of judicial estoppel (a theory that prevents someone from making inconsistent bad-faith arguments) the biological parent could not take one position in the child support proceeding and an opposing position in the custody proceeding. Therefore, Judge Whelan ruled the application for visitation from the non-biological former same-sex partner could move forward.
Paying Child Support and Visitation
It must be pointed out judicial rulings causing one parent to pay child support to another parent does not necessarily guarantee they will be successful in visitation proceedings with the child or children. There are a variety of other factors which are considered by courts, such as parenting skills of the petitioner, the best interest of the children, any previous instances of child abuse or child neglect, among other factors that are considered in child visitation proceedings. Child support proceedings in the Family Court in New York are presided over by Support Magistrates. Custody and visitation proceedings in Family Court in New York are presided over by Family Court Judges.
This case is an example of a Family Court Judge protecting the visitation rights of the non-biological parent in a same sex relationship.