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October 17, 2007

Same Sex Partner May Be Liable for Child Support, Despite Inability to Seek Custody/Visitation

Child support obligations are strong.  They apply even if the other party would not be able to seek custody or visitation as a de facto parent because the child was a "legal or biological stranger."  H.M. v. E.T., 2007 N.Y. slip Op. 51711 (Family Court, Rockland County, NY Sept. 11, 2007) (citing controlling N.Y. cases--omitted here).

If the same-sex partner agreed to become a parent via artificial insemination, even though that parent never formally adopted the child and is not the biological parent, he or she may be held liable for child support, the Rockland County Family Court announced.  Under a theory of equitable estoppel, the court reversed a magistrate decision dismissing the biological parent's petition for an establishment of paternity and child support. 

The court found that despite the lack of a written agreement between the parties, the respondent could be equitably estopped from denying her implied promise to provide child support.  The court noted that previous decisions had reached similar conclusions when: (1) two parties were planning to adopt a child, but had not yet finalized the adoption, (2) the respondent had executed an agreement indicating an obligation for support of the child, or (3) the respondent held himself out as the father of the child despite DNA evidence indicating otherwise.

The primary concern here, the court noted, is the best interest and welfare of the child.  "Cutting off [ ] support, whether emotion or financial may leave the child in a worse position than if support had never been given."  Shondel J. v. Mark D., 7 N.Y.3d 320, 330 (N.Y. 2006).

Thus, because the petitioner relied on the respondent's actions in agreeing to conceive of a child through artificial insemination, the respondent may "be equitably estopped to deny her responsibility to provide support to the subject child."  H.M. v. E.T., slip op. at 9.

Thus, the court ruled that a hearing should be scheduled to determine, under the facts of this case, whether the respondent may be equitably estopped from denying responsibility for child support in this case.

It seems fair to hold a same-sex partner liable for child support if the biological parent (or the other parent, if a surrogate was used) can demonstrate such reliance on the other's promise to help support the child.   It seems unfair, however, for that other "parent" (at least for purposes of child support) to have no standing, then, to seek visitation/custody rights as well.  If there is a reason to deny visitation rights (such as abuse or neglect), then it seems fine to deny visitation rights while demanding child support payments.  In this situation, however, it seems inequitable to the "parent" paying the child support.  Of course, in practical terms, it would have been much better for the biological mother if she had gone through the process of a second-parent adoption.  By legally adopting the child, the second parent would definitely be held liable for child support and would also have the added protection of child visitation rights/custody rights.

October 17, 2007 in Family Law, Sara R. Benson | Permalink

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