Carol Goldstein, J.

Patricia A Fersch, Esq., Fersch Petitti LLC, Attorney for Petitioners, 11 Broadway, Suite 550, New York, NY 10004

Alyssa Eisner, Esq., Sager Gellerman Eisner LLC, Attorney for Respondent, 118–35 Queens Boulevard, Suite 1705, Forest Hills, NY 11375

Carol Goldstein, J. In the instant case, three parties—the biological mother, the biological father and the father's husband—agreed to conceive and raise a child together in a tri-parent arrangement. The question before the court is whether the father's husband has standing to seek custody and visitation with the subject child under Domestic Relations Law (DRL) § 70 (a) pursuant to Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), even though the child already has two legal parents. The court holds that under the circumstances of this case, the father's husband has standing to seek custody and visitation and the matter is set down for a best interest hearing.

Background

The parties in the instant case, a married same-sex male couple, petitioners David S. and Raymond T., and a single woman, respondent Samantha G., were all friends. Over brunch in May 2016, the three friends discussed how each wished to be a parent and devised a plan whereby a child would be conceived and raised by the three parties in a tri-parent arrangement. While the parties agreed that the mother would continue to live in New York City and the men would continue to reside together in Jersey City, the parties agreed that they would consider themselves to be a "family." The parties then proceeded to execute their plan. For an eight-day period, Misters S. and T. alternated the daily delivery of sperm to Ms. G. for artificial insemination. On or about Labor Day weekend, 2016, Ms. G. announced that she was pregnant. The three parties publicized the impending birth on social media with a picture of all three parties dressed in T-shirts. Misters S. and T.'s shirt each said, "This guy is going to be a daddy" and Ms. G.'s shirt said, "This girl is going to be a mama."

The parties jointly decided that the child would be delivered by a midwife at the residence of Misters S. and T. The parties jointly selected the midwife and shared in the payment of her fees. Mr. S. attended all the pre-birth appointments with the midwife and Mr. T. attended some of those appointments. Ms. G. and Misters S. and T. all attended an eight-week natural childbirth course and Mr. T. arranged to take a sixteen-week paternity leave after the child was born. The parties agreed on a pediatrician and agreed to make medical decisions jointly. They further agreed that the child would be covered under Mr. T.'s health insurance plan. Additionally, the parties agreed to each contribute to a joint savings account for the child and as of the date of the filing of papers in the instant proceeding, Mr. T. had contributed 50% of the funds in the account.

The subject child, a baby boy, was born on May 6, 2017. As planned, the birth took place at the home of Misters S. and T. in New Jersey, with both men present. After a private genetic marker test determined that Mr. S. was the child's biological father, Mr. S. signed a New Jersey acknowledgement of paternity on May 11, 2017, when the child was five days old. The name chosen for the child, Matthew Z. S.–G., recognized all three parties. Matthew is a G. family name, the middle name Z. is Mr. T.'s father's name, and G. and S. are the surnames of the two biological parents. After the child's birth, Ms. G., Matthew and Ms. G.'s mother all spent a week at the home of Misters S. and T.

At the week's conclusion, Matthew went to live with Ms. G. in New York County, where he continues to live. Misters S. and T. have regular daytime parenting time and in the summer of 2017, the parties and Matthew took a vacation together in the Catskills. Overnight visitation has been slow to start because Matthew was nursing on demand, but overnight visits are scheduled to commence this month.

When speaking to Matthew, all parties refer to Ms. G. as "Momma," Mr. S. as "Daddy" and Mr. T. as "Papai," which is Portuguese for father. When Matthew needed hernia surgery at the age of two months, all three parties were present at the hospital for the surgery.

Before Matthew was born, the parties engaged an attorney to draft an agreement regarding the rights of the parties, but ultimately no agreement was signed. On June 1, 2017, Mr. T. and Ms. G. entered an agreement with literary agents to write a book about the joint parenting of Matthew Since Mr. T. is a meteorologist, the working title of the book is "Forecasting a Family."

Issues arose between the two men and Ms. G. with respect to the parenting of Matthew as well as to the extent of parental access by Misters S. and T. The relationship among the parties became strained, and on November 12, 2017, Misters S. and T. filed a joint petition against Ms. G. seeking "legal custody and shared parenting time" with Matthew. On December 6, 2017, Ms. G. filed a cross-petition against Misters S. and T. seeking sole custody of Matthew with Misters S. and T. being granted reasonable visitation. None of the parties filed a petition seeking an order of paternity or parentage.

At the initial court appearance, the parties agreed to a temporary access schedule, and all three parties agreed that Mr. T. should have standing to seek custody and visitation pursuant to Brooke S.B. In Brooke S.B. , the New York Court of Appeals held that where a legal parent had agreed with his or her partner to conceive and raise a child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under DRL § 70. Since the instant matter involved a third person seeking standing as a parent where there are already two legal parents, the court asked that the parties submit memoranda of law on the applicability of Brooke S.B. to this circumstance.

In the joint memorandum of law filed by Misters S. and T., the two men contended that not only should Mr. T. be declared to have standing to seek custody and visitation as a "parent," but he should also to be declared to be the third legal parent of Mathew. In the memorandum of law filed by Ms. G., she conceded that because all three parties agreed to conceive and raise a child together, Mr. T. should have standing to seek custody and visitation under DRL § 70 (a). However, she argued strenuously that the right to seek custody and visitation as a "parent" under the Domestic Relations Law does not automatically bestow parentage on the non-biological party and asked that this court not declare Mr. T. to be a third legal parent.

Court's Decision

The landmark Court of Appeals case Brooke S.B. changed the legal landscape regarding the rights of a partner who is not a legal parent to seek custody and visitation. Brooke S.B. held that "where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70" ( id. at 15, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). Domestic Relations Law § 70 (a) provides:

Where a minor child is residing within this state, 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 for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. 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 best promote its welfare and happiness, and make award accordingly (emphasis added).

Significantly, Brooke S.B. overruled the Court's ruling in Allison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 (1991), which denied a partner who lacked a biological or adoptive relationship with a child the right to seek visitation under DRL § 70(a), despite having an established "parental" type relationship with the child. In determining to break with precedent, the Brooke S.B. court gave primary consideration to the well-being of children being raised in nontraditional families and to how the Allison D. decision had negatively impacted those children ( Brooke S.B. at 19–29, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). In making its ruling, the Brooke S.B. court also recognized the fundamental right of parents to control the upbringing of their children and required that the relationship between the child and the partner came into being with the consent of the legal parent ( id. at 26, 39 N.Y.S.3d 89, 61 N.E.3d 488 ).

In reaching its decision, the Brooke S.B. court relied heavily on the dissent of Judge Kaye in Allison D. Judge Kaye foresaw that the Allison D. ruling would " ‘fall [ ] hardest’ on the millions of children raised in nontraditional families—including families headed by same-sex couples, unmarried opposite-sex couples, and stepparents" ( Brooke S.B. at 20, 39 N.Y.S.3d 89, 61 N.E.3d 488 citing Allison D. , 658–660, 569 N.Y.S.2d 586, 572 N.E.2d 27 [Kaye, J. dissenting].) "The dissent asserted that, because DRL § 70 does not define ‘parent’—and because the statute made express reference to ‘the best interests of the child,’ the court was free to draft a definition that accommodated the welfare of the child" ( id. ). The dissent criticized the majority for turning its back "on a tradition of reading section § 70 so as to promote the welfare of the children" ( id. ).

In determining to overrule Allison D. , the Brooke S.B. court also noted that legal commentators have "taken issue with Allison D. for its negative impact on children" and that "[a] growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure—such as a de facto parent—regardless of the figure's biological or adoptive ties to the children" ( id. at 25–26, 39 N.Y.S.3d 89, 61 N.E.3d 488 [citations omitted] ).

Against this backdrop, this court is now called upon to determine if the ruling in Brooke S.B. would be applicable to the situation at hand, where three—not just two—parties agreed to a preconception plan to raise a child together. It is not disputed that Ms. G. and Misters S. and T. consented to a preconception plan to establish a family where the child to be conceived would have three parents (albeit in two homes) and proceeded to effectuate that plan. The two men alternated the delivery of their sperm day by day to artificially inseminate Ms. G., and the three parties jointly announced their impending parenthood when Ms. G. became pregnant. The three parties jointly chose and paid for the midwife, were present when the child Matthew was born, and selected names for the child that recognized all three parties. The three parties agreed on a pediatrician and on a health insurance plan, and were all present at the hospital when Matthew needed hernia surgery at the age of two months. Misters S. and T. currently enjoy regular parenting time with Matthew.

The court finds that under the above circumstances where the three parties entered and followed through with a preconception plan to raise a child together in a tri-parent arrangement, the biological father's spouse has standing to seek custody and visitation as a parent pursuant to Brooke S.B. In making this decision, this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.

The court further finds that its ruling that Mr. T. has standing to seek custody and visitation despite the existence of two legal parents, to be consistent with the fundamental principle of Brooke S.B. —that DRL § 70 must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure ( id. at 20, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.

It is worth noting that the situation before the court—where three parties are involved in raising a child—is likely to recur. Realistically, where same-sex couples seek to conceive and rear a child who is the biological child of one member of the couple, there is always a third party who provides either the egg or the sperm. While in many cases, an anonymous donor is used or all persons involved agree that the donor will not be a parent, this is not the situation in the instant case and in many other cases where the parties agree that the provider of the egg or sperm will be a parent.

This court's ruling is also consistent with the decision in Dawn M. v. Michael M., 55 Misc.3d 865, 47 N.Y.S.3d 898 (Sup.Ct. Suffolk Co. 2017), where a trial court granted the request of a third party for standing as a parent even though the subject child already had two legal parents. In Dawn M. , three parties—a husband (biological father), his wife, and another woman (biological mother)—decided to conceive and raise a child and the three parties lived together as a family for the first eighteen months of the child's life. Thereafter, the husband and wife divorced, the husband moved out and the two women continued to reside together with the child. The court granted the wife standing to seek custody and ultimately issued a tri-parent custody order. The Dawn M. court found that "tri-custody is the logical evolution of the Court of Appeals decision in Brooke S.B. and the passage of the Marriage Equality Act and DRL 10–a which permits same sex couples to marry in New York" ( Daw—n M. at 870, 47 N.Y.S.3d 898 . See also RPF v. FG, 55 Misc.3d 642, 47 N.Y.S.3d 666 [Fam. Ct. Orange Co. 2017] ) (after best interest hearing, court granted custody to partner of biological father and parental access to both biological father and biological mother.) The situation in the instant case and in the Dawn M. case is very different from the situation where a same-sex married couple enters into an agreement with a third party to donate an egg or sperm with the understanding that the donor will not be a parent to the child who is conceived. Under such circumstances, the presumption of legitimacy—that a child born during a marriage is the legitimate child of the marriage—is of critical importance. If the presumption of legitimacy is not rebutted, the court may deem the child to be the legal child of both same-sex spouses and deny the sperm or egg donor parental status.

In Christopher YY. v. Jessica ZZ., 159 A.D.3d 18, 69 N.Y.S.3d 887 (3d Dept. 2018), the court found that the presumption of legitimacy was not rebutted where a woman in a same-sex marriage was artificially inseminated by a sperm donor, and dismissed the paternity petition filed by the donor. The court additionally found that the doctrine of equitable estoppel would bar the sperm donor's request for genetic marker testing to establish paternity. In Joseph O. v. Danielle B., 158 A.D.3d 767, 71 N.Y.S.3d 549 (2nd Dept. 2018), the court similarly found that the presumption of legitimacy applied where one party in a female same-sex marriage was inseminated with donor sperm. The court, however, never reached the issue of what evidence would have been necessary to rebut the presumption, because it found that dismissal of the paternity petition brought by the sperm donor was warranted based upon the doctrine of equitable estoppel.

In the instant case, although two of the parties, Misters S. and T. are married, the presumption of legitimacy is not relevant to the court's analysis. This is because the presumption that Matthew is the legitimate child of the married couple, Misters S. and T., would indisputably be rebutted by evidence that all three parties agreed that Matthew would be raised in a tri-parent arrangement and that Ms. G., the biological mother, would be a parent to Matthew.

In sum, for the reasons explained above, the court is granting Mr. T. standing to seek custody and visitation with Matthew. The court will set this matter down for a trial to determine what orders of custody and visitation are in Matthew's best interest. As stated in Brooke S.B. at 28, 61 N.E.3d 488, "the ultimate determination of whether those rights [of custody and visitation] shall be granted rests in the sound discretion of the court, which will determine the best interest of the child."

The court is not, however, granting Mr. T. an order of parentage. That issue is not properly before the court since no petition was filed for paternity or parentage. Moreover, there is no need for the issue of parentage to be addressed since pursuant to Brooke S.B. , Mr. T. may seek custody and visitation as a "parent" under DRL § 70(a) without a determination that he is a legal parent. If, in the future, a proper application for a declaration of parentage is made and there is a need for a determination of parentage, for instance, to rule on a request for child support, the court may address this issue. This court, however, notes that there is not currently any New York statute which grants legal parentage to three parties, nor is there any New York case law precedent for such a determination.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.