Judge Edmund Dane sitting in the Family Court in Nassau County on July 25, 2014, rendered a decision of first impression involving two women in a same sex relationship. The women’s names were Jamie and Jan. Jamie had brought a motion to dismiss ex-wife Jan’s application to the court seeking joint custody of the parties’ child, John. She argued there was no standing to bring this proceeding.
Jamie and Jan had been married in New York in 2012. However, Jan did not adopt John. Jamie was the biological parent of John.
The Separation Agreement
Jamie and Jan had entered into a separation agreement. The agreement indicated John was a child of the marriage. Jan therefore took the position Jamie should be equitably estopped (prevented) from obtaining joint custody of John. She claimed she had been continually involved in a parental role of John and it was in John’s best interest she be given joint custody.
Justice Dane found Jan’s argument was not appropriate. Jan was not John’s birth parent. Jan could not claim in a paternity proceeding, like a man would be able to in the same situation, the argument of equitable estoppel could be applied for establishing standing to request joint custody of the child, John. Simply stated Justice Dane’s position was only a father could allege he was the biological parent of John under this statute. The statute allowed a paternity proceeding but not a maternity proceeding.
Does this mean if two women are in a same sex relationship and one woman is the biological parent of the child, the other woman has to adopt the child if she seeks to have custody or visitation in a divorce proceeding?