Justice Harold B. Beeler

NEW YORK COUNTY
Supreme Court
 
DECISION & ORDER

Petitioner moves by order to show cause for joint legal and physical custody of the subject child (hereinafter "M.R."), parenting time and telephone contact with M.R., appointment of an attorney for the child, and an immediate hearing regarding legal and physical custody of M.R. Respondent opposes the motion.

BACKGROUND

There are few facts in this matter which are undisputed. Respondent is a sole practicing attorney in Manhattan. Petitioner is a managing consultant who also owns her own firm. The parties met in January 2002 and became intimate shortly thereafter. Prior to meeting petitioner, respondent had attempted to become pregnant through artificial insemination, but was unable to carry to term. In the Spring of 2003, respondent successfully conceived M.R. through artificial insemination. Shortly thereafter, respondent moved into petitioner's apartment on West 90th Street while maintaining her separate residence on West 89th Street. The dining room in petitioner's apartment was converted into M.R.'s bedroom. Petitioner's daughter from a previous marriage stayed in the second bedroom of the apartment when she visited from college, and then later, from law school. On September 25, 2003 the parties registered as domestic partners with the City of New York and on November 12, 2003 entered into a civil union in Vermont (petitioner's exhibits A, B).

Respondent gave birth to M.R. on December 8, 2003. Petitioner was present in the delivery room and cut the baby's umbilical cord. M.R. was given petitioner's last name as a middle name.¹ The child naming certificate issued by the parties' synagogue and the synagogue's newsletter announcing M.R.'s birth lists both parties as M.R.'s parents (petitioner's exhibit K).

Prior to M.R.'s birth, the parties met with an adoption attorney for the purpose of investigating a second-parent adoption. The attorney advised the parties that petitioner could not seek a second-parent adoption until M.R. was at least 6 months old. Although the parties have different explanations as to why, it is undisputed that petitioner never adopted M.R. Respondent did, however, execute a Power of Attorney, on February 20, 2006, appointing petitioner as M.R.'s guardian, until he turned 21 years old (petitioner's exhibit V).

In February 2006 respondent moved out of petitioner's apartment with M.R., and back into her own apartment on West 89th Street. Although the parties attempted to work on their relationship after respondent moved out, by March 2006 respondent had terminated the relationship.

Even after the parties were broken-up, petitioner continued to see and talk to M.R. on a daily basis from February 2006 through May 2006. In or around May 2006, respondent limited petitioner's time with M.R. to a few hours every Sunday, Wednesday and Friday. Petitioner continued to have daily telephone contact with M.R. during this time. It is not clear to this court exactly why, but after the parties had been separated for approximately one month, respondent insisted that M.R.'s nanny, and later respondent herself, be present during all of petitioner's time with M.R. Beginning on or around March 14, 2008, respondent began to cut back on petitioner's access with M.R. On or around April 28, 2008, respondent terminated all of petitioner's physical visits with M.R.; shortly thereafter, on or around May 3, 2008, respondent terminated all of petitioner's telephone contact with M.R. as well.

On or around May 12, 2008, petitioner brought this instant order to show cause, seeking, inter alia, joint legal and physical custody and parenting time with M.R. A hearing on the Temporary Restraining Order was held on May 21, 2008, and after oral arguments, the court signed the order to show cause and granted petitioner interim access to M.R. on a basis consistent with the schedule in place before respondent began cutting back on petitioner's access, pending a full hearing on the motion. After oral arguments on the return date of the motion, July 10, 2008, the court issued a further order continuing petitioner's access with M.R. until a decision was made on the motion.

Although the parties agree to the facts as stated above, their affidavits and the affidavits of various third-parties in support of their respective positions, differ substantially with respect to the nature and extent of petitioner's relationship with respondent and, more significantly, with M.R.

According to petitioner, in or around June 2002, the parties were committed to one another and decided they wanted to have a family together. They agreed that respondent would be artificially inseminated and petitioner would adopt the child. Petitioner claims to have attended all doctor appointments with respondent, and to have reviewed and selected a sperm donor with respondent. Once respondent was pregnant, petitioner states that they saw a lactation and Lamaze specialist together, interviewed baby nurses and nannies together and selected a pediatrician together. According to petitioner, the parties registered as domestic partners and entered into a civil union before respondent gave birth so that their son would be born to parents who were committed to one another.

As previously stated, petitioner was present in the delivery room when M.R. was born and cut his umbilical cord. Petitioner claims that M.R.'s first name honors both of the parties' fathers, and that his Hebrew name honors petitioner's brother.

According to petitioner, after having been advised by an adoption attorney prior to M.R.'s birth that the parties would have to wait until M.R. was at least six-months-old before petitioner could adopt him, petitioner again raised the subject of adopting M.R. with respondent some time in the summer of 2004. Petitioner claims that respondent dissuaded her from pursuing the adoption by telling her words to the effect of "we don't need an adoption. You are his parent. I am a lawyer. I know the court system. We don't want the Courts to get involved" (affidavit of petitioner dated May 12, 2008 at 12). According to petitioner, respondent also reassured her that she would never take M.R. away from her. Petitioner believed and trusted respondent, and therefore did not pursue the adoption any further.

Petitioner considers herself to be M.R.'s parent and states that she was held out as such. According to petitioner, the parties had birth announcements made for M.R. naming both parties as parents and sent them out to family and friends (petitioner's exhibit E). Both parties were also listed as M.R.'s parents on the child naming certificate issued by their synagogue and in the synagogue's newsletter announcing M.R.'s birth (petitioner's exhibit K). Although when speaking, M.R. would generally refer to respondent as "mommy" and to petitioner by her first name, he would also, according to petitioner, sometimes call petitioner "mama." According to petitioner, respondent addressed petitioner in cards as her "wife", or M.R.'s "mommy" or "mom" (petitioner's exhibit XX). Petitioner further alleges that the parties would introduce each other and were introduced by others as M.R.'s parents, and she annexes cards from friends in which the parties are collectively referred to as M.R.'s "mommies" (petitioner's exhibit H).

Petitioner also claims to have contributed substantially to M.R.'s financial support during the time the parties lived together. According to petitioner, she and respondent shared the cost of converting her dining room into M.R.'s bedroom and child proofing the apartment. She also paid for the rabbi who performed M.R.'s bris, which was held in the petitioner's apartment (petitioner's exhibit J). In January of 2004, petitioner deposited $2,500 into an account that the parties opened for M.R.'s benefit (petitioner's exhibit J). She also claims to have paid for M.R.'s recreational expenses, travel, membership expenses, classes, clothing, shoes, toys, and books. With the exception of M.R.'s health insurance premiums, baby nurses and nanny, petitioner states that it was the parties' practice to share M.R.'s expenses.

From the time he was born until he was two years old, petitioner alleges to have performed all of the typical parenting responsibilities for a young child on behalf of M.R.: including, feeding him, changing him, dressing him, reading to him, and playing with him. Petitioner claims to have arranged various activities, classes and play dates for M.R. From his birth until last year, petitioner states that she and respondent continued to take M.R. to synagogue, doctor appointments, haircuts, and holiday and birthday celebrations together. When he was old enough, the parties toured pre-schools together, went to interviews together, and were both listed on applications and school and camp contact lists as M.R.'s parents (petitioner's exhibits JJ and JJJ). Petitioner alleges that she and M.R. shared a very close relationship. She further claims that respondent was jealous of the bond she shared with M.R. and that her jealously ultimately led to the couple's break-up.

Respondent recounts a very different set of facts. According to respondent, she never intended to have a family with petitioner and in support, cites to the fact that she was attempting to become pregnant by artificial insemination before she even met petitioner. Respondent claims that petitioner had no input in her decision to have a child and in the issues surrounding that decision, including the selection of a sperm donor.

Respondent states that petitioner was never her "spouse." She claims to have entered into the civil union in November 2003, because petitioner insisted upon it and coerced her into it when she was eight months pregnant. Respondent acquiesced to petitioner's demands because, after consultation with an attorney, she was advised that the civil union would be of no legal significance in the State of New York and she wanted petitioner to stop nagging her. According to respondent, the ceremony in Vermont was of no personal or emotional significance to her either. Respondent points out that if she had wanted, the parties could have easily been married in Canada, where same sex marriages were legal at the time, since petitioner was working there two-three days per week throughout 2004. Respondent states that she did not marry petitioner, however, out of concern that marriage might lead to a situation where petitioner might later seek visitation with M.R. if the relationship were to end.

Respondent acknowledges seeing an adoption attorney with petitioner prior to M.R.'s birth, but says she did so in order to avoid further confrontation after petitioner insisted upon it. When petitioner again raised the subject of adoption with respondent after M.R.'s birth, respondent refused and states that petitioner eventually dropped the subject.

Respondent alleges petitioner pressured her, 18 hours after giving birth, into making petitioner's last name M.R.'s middle name. Respondent says she reluctantly agreed to include the name on M.R.'s birth certificate, even though she had no intention of using it. M.R.'s passport issued on July 5, 2005 does not include petitioner's last name as his middle name (respondent's exhibit C). And in July 2006 respondent had petitioner's last name legally removed as M.R.'s middle name (respondent's exhibit D). Respondent further claims that it is only by coincidence that M.R.'s first name starts with the same letter as petitioner's father's, as M.R. was named solely in honor of respondent's father, not petitioner's. Moreover, respondent alleges that petitioner tricked her into giving M.R. petitioner's brother's Hebrew name by using her superior knowledge of the language to mislead respondent into believing that the name translated into something different.

Respondent argues that although petitioner may have held herself out as M.R.'s mother, she never did the same. According to respondent, she tolerated petitioner's attempts to create the appearance of a family in reliance on the Court of Appeal's decision in Matter of Alison D. v. Virginia M., 77 NY2d 651 (1991), which, as an attorney, she had researched and determined precluded petitioner from claiming any rights as M.R.'s parent. Respondent claims that petitioner sent out birth announcements with both parties' names on them to her family and friends without respondent's permission. She also claims that without consulting her, petitioner listed herself as one of M.R.'s mothers on the child naming paperwork required by the synagogue, and therefore, both parties were listed as M.R.'s parents on the child naming certificate and in the synagogue's newsletter announcing M.R.'s birth. Likewise, respondent claims that petitioner, again without respondent's knowledge or consent, sent in an additional camp application for the summer of 2007 on behalf of M.R., and therefore, both parties were included on the camp's parent list for last summer. Respondent notified the camp not to send any documents related to M.R. to petitioner and, accordingly, petitioner was not listed on the camp's parent list for this past summer. Respondent, however, does acknowledge that petitioner was listed on one of M.R.'s school applications as a "guardian just in case" since the parties were still together when M.R. enrolled (affidavit of respondent dated June 20, 2008 at 16). After the parties separated, respondent again notified the school not to disclose any information regarding M.R. to petitioner (respondent's exhibit N).

Respondent claims that neither she nor M.R. referred to the petitioner as "mommy" or any derivation thereof; rather, petitioner was always referred to by her first name or as "mommy's friend." Respondent states that only petitioner's friends sent petitioner cards in which she was addressed as "mommy." Respondent received congratulatory cards following M.R.'s birth addressed only to her (petitioner's exhibit B).

Respondent states that she has been M.R.'s sole financial support throughout his life. According to respondent, she paid approximately $50,000 out-of-pocket for intro-vitro-fertilization treatments and medications. She, with the help of her mother, also furnished M.R.'s bedroom and hired a professional to "child-proof" the apartment, at their sole cost. Respondent also alleges to have paid for more than 50 percent of petitioner's living expenses while the parties were residing together. She also paid for M.R.'s memberships to various parks and museums, his educational expenses, health insurance, baby nurse, nanny, vacations, clothes and toys, with the exception of a few toys that petitioner gave to him. Although petitioner initially paid for the cost of M.R.'s bris, respondent claims to have reimbursed her.

According to respondent, while petitioner may have helped out occasionally, respondent has always been M.R.'s primary caretaker. Either respondent, the baby nurses, or the nanny she hired would feed, bathe and read to M.R., not petitioner. Respondent hired and paid for all of the people who helped her care for M.R., without any input from petitioner. According to respondent, since petitioner traveled to Canada two-three times per week for work during the first year of M.R.'s life, it would have been impossible for her to have cared for M.R. in the manner in which she alleges. Respondent claims that she alone has made all decisions regarding M.R.'s education, health, and extra-curricular activities. She argues that she arranged for and attended all of M.R.'s doctor appointments and selected and attended all of M.R.'s classes with him.

Respondent denies that petitioner is as important to M.R. as she claims and that she ever resented petitioner's relationship with M.R. According to respondent, after the parties separated she initially allowed petitioner to see and talk to M.R. out of guilt. However, after approximately one month, respondent required that either M.R.'s nanny and then later, respondent herself, be present with petitioner whenever she was with M.R. Respondent states that she has been trying to terminate petitioner's visits with M.R. since March of 2006, but because petitioner would "throw a fit" every time she attempted to do so, respondent acquiesced to allowing her to continue to see her son (affidavit of respondent dated June 20, 2008 at 22). However, after Beth R. v. Donna M., 853 NYS2d 501 (Sup Ct, NY County 2008), was decided, a decision widely known throughout the lesbian community, petitioner's demands on respondent and M.R. became increasingly aggressive. In response, respondent gradually began to cut back on petitioner's time with M.R. beginning on or around March 14, 2008. When petitioner threatened to hire an attorney and bring an action against respondent if she did not allow her to continue to see M.R., respondent cut off all contact between petitioner and M.R.

According to respondent, M.R. did not ask for petitioner or react in anyway after respondent cut-off petitioner's contact with him. She states that he is a happy and well-adjusted boy, and, according to his teachers, was much more out-going and friendly during the month following the termination of his contact with petitioner. Respondent alleges that if M.R. was in anyway suffering as a result of not seeing petitioner, she would not have opposed this motion. Respondent believes that petitioner brought this action, not out of concern for M.R.'s welfare, but as a means of attempting to control her and her son's life.

LEGAL ANALYSIS

Petitioner seeks to have this court grant her joint legal and physical custody of M.R., with parenting time and telephone contact. She moves for the appointment of an attorney for the child to represent the best interests of M.R. Respondent opposes the application on the grounds that petitioner lacks standing to seek custody or visitation with M.R. since she is neither his biological nor adoptive parent. Matter of Alison D. v. Virginia M., 77 NY2d 651 (1991); Anonymous v. Anonymous, 20 AD3d 333 (1st Dept 2005); Gublin v. Moss-Gublin, 45 AD3d 1230 (3d Dept 2007). The petitioner contends that the respondent is estopped from challenging her parental status vis ‡ vis M.R. since petitioner, with the respondent's encouragement, has established strong parental ties to M.R. In the Matter of Shondel v. Mark D., 820 NYS2d 199 (2006); Beth R. v. Donna M., 853 NYS2d 501 (Sup Ct, NY County 2008).

The statute applicable to this matter, DRL §70, states that "either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and, on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent . . . as the case may require . . . In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will promote its welfare and happiness, and make award accordingly."

In the Matter of Alison D. v. Virginia M., 77 NY2d 651 (1991), the case allegedly relied upon by respondent in fashioning her dealings with petitioner, the Court of Appeals held that a person who is not a biological or adoptive parent of a child is not a "parent" within the meaning of DRL §70, and therefore lacks standing to seek visitation. In Alison D., the petitioner sought to have visitation with a child born to her former same-sex partner, with whom she shared joint parenting responsibilities during the first two and a half years of the child's life, on the grounds that she was the child's "de facto" parent or parent "by estoppel." Id. at 656. Applying a narrow reading of the term "parent" under the DRL, the court held that the petitioner "has no right under Domestic Relations Law §70 to seek visitation and, thereby, limit or diminish the right of the concededly fit biological parent to choose with whom her child associates." Id.

The court rendered its decision in Alison D. over the strong dissent of now Chief Judge Judith Kaye who opined that in taking such a "hard line" in defining "parent" under DRL §70, the majority had ignored the legislative purpose of the statute, which was to promote '"the best interest of the child' and the child's 'welfare and happiness.'" Id. at 659 quoting DRL §70. Chief Judge Kaye would have remanded the case to the trial court for a determination as to whether the petitioner stood in loco parentis to the child and, if so, whether it was in the child's best interest to allow the petitioner visitation rights. Id.

Since Alison D. was decided over seventeen years ago, some courts, while following the majority's holding in Alison D., have expressed a reluctance in doing so or a willingness to recognize an equitable estoppel argument in custody or visitation disputes under different circumstances. See Multari, Jr. v. Sorrell, 287 AD3d 764, 767 (3d Dept 2001) (noting that while the court may be inclined to agree with the concurring opinion that an estoppel argument may be recognized under certain circumstances, it felt bound to adhere to Alison D.); Bank v. White, 40 AD3d 790, 791 (2d Dept 2007) ("Although equitable estoppel has been applied by this Court to visitation disputes under compelling circumstances, we decline to apply it under the facts of this case.") (citations omitted); Gublin v. Moss-Gublin, 45 AD3d 1230, 1231(3d Dept 2007) ("Here, the doctrine [of equitable estoppel] is inapplicable . . . Under these circumstances, it cannot be concluded that defendant led plaintiff to form a reasonable belief that her claim to custody of her second son would not be asserted.") (emphasis added); Anonymous v. Anonymous, 20 AD3d 333, 333 (1st Dept 2005) ("Although the doctrine of equitable estoppel has been applied in various proceedings involving paternity, custody and visitation, there is no basis for its invocation here.").

Other courts have entirely rejected the majority's reasoning in Alison D. and, instead, have relied on Chief Judge Kaye's dissent, applying equitable estoppel based on the best interests of the child in custody or visitation disputes. See Jean Maby H. v. Jospeh H., 676 NYS2d 677 (2d Dept 1998); Gilbert A. v. Laura A., 261 AD2d 886 (4th Dept 1997) (husband entitled to present proof as to whether the doctrine of equitable-estoppel applies with respect to his application for visitation with a child born during the marriage, but who was not his biological or adoptive child); Beth R. v. Donna M., 853 NYS2d 501 (Sup Ct, NY County, 2008); Christopher S. v. Ann Marie S., 173 Misc.2d 824, 832 (Sup Ct, Dutchess County 1997) (based on the best interest of the child, the biological mother was equitably estopped from raising her ex-husband's status as a non-biological parent as an issue in a custody proceeding).

In Beth R., the case most heavily relied upon by petitioner, the plaintiff commenced a divorce action against her same-sex spouse and sought a determination of her custodial rights and support obligations vis ‡ vis the children born immediately before and during the marriage. 853 NYS2d 501. The parties in that case had been dating for approximately two years before the defendant became pregnant by artificial insemination. The parties had intended to marry in Canada prior to the birth of the child, but because of a death in the defendant's family, the wedding was postponed until approximately four months after the child was born.² The defendant had another child by artificial insemination approximately two years later. The plaintiff was present in the delivery room during the birth of both children and cut their umbilical cords. Although the defendant never allowed the plaintiff to adopt the children, both children were given the plaintiff's last name, the parties sent out birth announcements together, were on the same insurance plan, and the defendant named the plaintiff as the children's guardian in her will. The children referred to the defendant as "Mom" and the plaintiff as "Mommy." Each party cared for, supported and made important decisions regarding the children's upbringing.

In granting the plaintiff standing to seek custody, the court in Beth R. relied on a line of case law that has emerged, parallel to Alison D. and its progeny, in which equitable estoppel has been used as a defense where a person, typically a non-biological father, seeks to avoid child support obligations, or a biological father belatedly seeks recognition of his parental rights. Beth R., 853 NYS2d at 507 (citing Matter of Diane E. v. Angel M., 20 AD3d 370 (1st Dept 2005); Hammack v. Hammack, 291 AD2d 718 (3d Dept 2002); Fung v. Fung, 238 AD2d 375 (2d Dept 1997); Purificati v. Parcos, 154 AD2d 360 (2d Dept 1989)). In particular, the court relied on the recent Court of Appeals decision in Matter of Schondel J. v. Mark D., 7 NY3d 320 (2006) and the latter's reference to Maby H. v. Joseph H., 246 AD2d 282 (2d Dept 1998).

In Schondel J. the court held that the best interests of the child warranted equitably estopping the child's non-biological father from denying paternity and from refusing to pay child support, since he had held himself out as the child's father and the child had justifiably relied on his representation of paternity. 7 NY3d at 328. The court in Schondel J. observed that "[t]he potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given." Id. at 330 (emphasis added).

Although Schondel J. involved issues of paternity and child support, the court, nevertheless, cited to Maby H. v. Joseph H., 246 AD2d 282 (2d Dept 1998), a custody and visitation proceeding, for the proposition that "New York courts have long applied the doctrine of estoppel in paternity and support proceedings. Our reason has been and continues to be the best interest of the child." Schondel J., 7 NY3d at 328 (citing Maby H., 246 AD2d at 285). In Maby H., the court found that although the husband was not the biological or adoptive father of a child born to the wife prior to the marriage, the wife, nevertheless, was equitably estopped from contesting his standing to seek custody or visitation since, among other things, he was named the father on the child's birth certificate, he was held out as the father for the first five years of the child's life and he financially supported the child. Maby H., 246 AD2d 282. In conclusion, the court in Maby H. stated "we are of the opinion that the best interests of the child will not be served in this case if . . . Alison D. (supra) [is] blindly applied." Id. at 289.

The court in Beth R. found the Court of Appeals' reference in Shondel J., a paternity and child support proceeding, to Maby H., a custody and visitation proceeding, to be of significance and "not mere coincidence" in light of the "many cases that have authorized equitable estoppel as a defense to paternity proceedings" which the Shondel J. court could have cited to instead of Maby H. 853 NYS2d at 508. The court in Beth R. went on to state, "[i]f the concern of both the legislature and the Court of Appeals is what is in the child's best interest, a formulaic approach to finding that a "parent" can only mean a biologic or adoptive parent may not always be appropriate." Id. In reliance on Shondel J. and Maby H., the court concluded that the facts before it justified a hearing to determine whether the best interests of the children warranted granting custodial rights to the plaintiff. Id. at 508-509.

An additional factor in support of the court's holding in Beth R. was that the parties were married. 853 NYS2d at 509. The court reasoned that the marriage in and of itself created obligations between the parties that could affect the children's welfare and also demonstrated the parties' intention to create familial bonds, particularly for the benefit of their children. Id. The court further pointed out that the birth of the second child during the marriage may require a finding that that child is the legitimate child of both parents. Id. (citing DRL §73; H v. P, 90 AD2d 434 (1st Dept 1982); Laura G. v. Peter G., 15 Misc.3d 164 (Sup Ct, Delaware County 2007)).

This court shares the concern expressed by Chief Judge Kaye in Alison D., 77 NY2d 651, and which was adopted in later cases, such as Maby H., 246 AD2d 282, Shondel J., 820 NYS2d 199, and most recently, Beth R., 853 NYS2d 501, that a formulaic approach to defining the word "parent" under the DRL may not always effectuate the legislature's express intent of furthering the best interests of the child. This court agrees that it is inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support obligations, but preclude a nonbiological parent from invoking the doctrine against the biological parent in order to maintain an established relationship with the child. Maby H., 246 AD2d at 287 (citing Matter of Christopher S. v. Ann Marie S., 173 Misc.2d 824 (Fam Ct, Duch County 1997). In either scenario, the court's primary concern should be furthering the best interests of the child.

The facts as alleged by petitioner, if found to be true, establish a prima facie basis for invoking the doctrine of equitable estoppel. Maby H., 246 AD2d at 289. Of particular significance are her allegations that the parties moved in together and consulted an adoption attorney prior to M.R's birth, sent out birth announcements together, were both listed as M.R.'s parents on the child-naming certificate and on some of M.R.'s school and camp documents, and that petitioner was present in the delivery room at M.R.'s birth and cut his umbilical cord, and that M.R. was given petitioner's last name as a middle name on his original birth certificate.

Moreover, the parties' civil union at the time of M.R.'s birth, is a significant, though not necessarily a determinative, factor in petitioner's estoppel argument. While respondent attempts to minimize the significance of the ceremony, parties to a civil union are given the same benefits, protections and responsibilities under Vermont law as are granted to those in a marriage. 15 VSA §1204(a), (d). This includes the assumption that the birth of a child during a couple's legal union is "extremely persuasive evidence of joint parentage." Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 971 (Sup Ct, VT 2006) (holding that the non-biologically-related partner is the parent of a child born by artificial insemination to the other partner of a civil union). Like the marriage in Beth R., the civil union here is strong evidence of the parties' intention to create familial bonds for their and M.R.'s benefit. Beth R., 853 NYS2d 501.³

However, since respondent disputes many of the facts alleged by petitioner regarding the nature and extent of their relationship and petitioner's relationship with M.R., a hearing is required in order to resolve whether petitioner stands in loco parentis to the child and may, therefore, invoke the doctrine of equitable estoppel against respondent. See Matter of Alison D. v. Virginia M., 77 NY2d 652, 662 (1991, Kaye, J., dissenting); H.M. v. E.T., 851 NYS2d 58 (Fam Ct, Rockland County 2007) (ordering a hearing to determine whether a party is equitable estopped from denying responsibility to pay child support on behalf of her former same-sex partner's biological child).

The So-Ordered Stipulation regarding access dated July 10, 2008 shall remain in effect, pending a final decision on the issue of standing. Accordingly, all visits shall continue to take place in the petitioner's home with a mutually agreed upon third-party present. If it is determined that the petitioner stands in loco parentis to the child, a hearing will then be held to determine whether it is in the child's best interest to allow petitioner custodial and visitation rights.

That branch of the motion seeking appointment of an attorney for the child is granted. The parties' attorneys shall attempt to agree on an attorney for the child and shall submit the name to the court for its approval within seven days from the date of this decision. If the attorneys are unable to agree, they shall each anonymously submit the names of three attorneys for the child to the court within eight days from the date of this decision, and the court shall consider their recommendations in its appointment. The cost of the attorney for the child shall be shared equally by the parties.

A status conference is scheduled for October 27, 2008 at 2:00 P.M. at Part 9, 71 Thomas Street, Room 304.

This constitutes the decision and order of the court.

1. After the parties separated, respondent commenced an action in the Civil Court of New York City, Kings County, to have petitioner's last name removed as M.R.'s middle name. In July 2006, Kings County Civil Court issued an order legally removing petitioner's last name from M.R.'s middle name. M.R.'s passport, issued a year earlier on July 5, 2005, did not include petitioner's last name as the child's middle name (respondent's exhibit C).

2. The parties had, however, obtained a marriage license in Canada before the birth of the first child.

3. Notably, in no other custody and/or visitation case following the majority's holding in Alison D., were the parties in a civil union at the time of the birth of the subject child(ren). In that regard, this case is one of first impression.