Same-Sex Parent Bearing Child Support Can Seek Custody of Child

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In a ruling published on Thursday, Suffolk County Family Court Judge Theresa Whelan held that a mother awarded child support by her former same-sex partner cannot argue that the former partner cannot seek custody of the child as she is legally not a parent.

In the instant case, Jennifer D., the biological mother of the child, had testified during child support proceedings that her former partner, Estrellita A., was a parent and was bound to pay support. Later, when Estrellita moved for custody of the child, Jennifer changed her stance and claimed that Estrellita cannot have custody as New York Domestic Relations Law applies the term “parent” only to biological or adoptive parents.

  

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A visibly annoyed Judge Whelan observed, “Colloquially, this is known as ‘having your cake and eating it too … Judicially, it is referred to as ‘inconsistent positions,’ which this court will not countenance.”

Consequently, Jennifer’s bid to dismiss the custody motion was denied.

The ruling noted that Jennifer and Estrellita were registered as domestic partners. Jennifer gave birth to a girl in 2008. At the time, the couple discussed about Estrellita adopting the child, but adoption proceedings were not filed.

The couple separated in September with Jennifer filing a petition of child support from Estrellita. To obtain child support, Jennifer told the court that Estrellita was a parent to the girl-child Hannah and therefore had to live up to her responsibilities.

The support proceedings also took place before Judge Whelan, who declared Estrellita as a legal parent of the child and ordered her to pay child support.

Estrellita followed up with a petition for visitation and custody rights, but Jennifer opposed, arguing this time, in the same court, that Estrellita could not possibly be a legal parent of the child according to local law.

Observing that Jennifer was stopped from asserting that Estrellita was not a parent, Whelan wrote that except under extraordinary circumstances, under New York law, non-biological or non-adoptive parents cannot bring custody and visitation petitions.

However, during the earlier support proceeding, observed Whelan, Estrellita “not only performed as a parent, she was in fact a parent.”