T.H. v. J.R.

Full title: In the Matter of a Proceeding under Article 6 of the Family Court Act…

Court: Family Court, Monroe County

Date published: Aug 9, 2018

2018 N.Y. Slip Op. 28291 (N.Y. Fam. Ct. 2018)

Opinion

V-03453-17

08-09-2018

In the Matter of a Proceeding under Article 6 of the Family Court Act, T.H., Petitioner, v. J.R. and B.S., Respondents.

Christopher D. Thomas, Esq. (Attorney for Petitioner T.H.) Nixon Peabody, LLP 1300 Clinton Square Rochester, NY 14604-1792 (585) 263-1087 Lisa J. Maslow, Esq. (Attorney for Respondent J.R.) P.O. Box 18188 Rochester, NY 14618 (585) 520-2188 Anthony J. Leavy Esq. (Attorney for Respondent B.S.) 1250 Culver Road Rochester, NY 14609 (585) 224-9373 Maureen Polen, Esq. (Attorney for the Child A.S.) The Legal Aid Society One West Main Street, Suite 800 Rochester, NY 14614 (585) 259-5757

Joan S. Kohout, J.

Christopher D. Thomas, Esq. (Attorney for Petitioner T.H.) Nixon Peabody, LLP 1300 Clinton Square Rochester, NY 14604-1792 (585) 263-1087 Lisa J. Maslow, Esq. (Attorney for Respondent J.R.) P.O. Box 18188 Rochester, NY 14618 (585) 520-2188 Anthony J. Leavy Esq. (Attorney for Respondent B.S.) 1250 Culver Road Rochester, NY 14609 (585) 224-9373 Maureen Polen, Esq. (Attorney for the Child A.S.) The Legal Aid Society One West Main Street, Suite 800 Rochester, NY 14614 (585) 259-5757 Joan S. Kohout, J.

DECISION AND ORDER

A petition seeking visitation was filed by T.H. on March 29, 2017 regarding the child A. S., born on February 12, 2011. A.S.'s parents B.S. and J.R. are the respondents in this case. The petition alleges that Ms. H. is the "psychological parent" of A. and seeks court ordered visitation with her.

Initially, the case was assigned to a referee. It was later transferred to this court to be heard with a custody proceeding between the parents.

After the case was transferred, an amended petition was filed by Ms. H. on October 4, 2017 seeking custody and visitation and alleging that Ms. H. is the equivalent of a parent and should be permitted to seek custody or court ordered visitation as a parent. She further alleged that Mr. R. is equitably estopped from opposing her petition.

A motion to dismiss the petition and amended petition was filed by Mr. R. on November 6, 2017 alleging that Ms. H. lacks standing to maintain any action as a parent, that Mr. R. is not equitably estopped from opposing the petition and that Ms. S. should be estopped from supporting the petition based on judicial estoppel.

In order to assure a complete record and to determine whether equitable estoppel principles apply, the court ordered a hearing on the motion to dismiss.

At the conclusion of the hearing, the parties were invited to submit written summations. The petitioner requested that the motion to dismiss be denied and that she be afforded the rights of a parent to request custody. Mr. R. requested that the petition be dismissed and that Ms. S. be judicially estopped from supporting Ms. H.'s petition. No summation was submitted by counsel for Ms. S. and she did not present any witnesses or proof at the hearing. As a result, the court was unable to determine her position as of the conclusion of the trial. The summation of the attorney for the child opposes dismissal.

For the reasons stated below, the court grants the motion to dismiss and finds that the petitioner has failed to demonstrate that she is entitled to be treated as a parent under any legal theory and that she, therefore, lacks standing to bring this petition.

LEGAL BACKGROUND

The court has taken judicial notice of the orders between A.'s parents J.R. and B.S. documenting the considerable legal history relating to their daughter.

On June 13, 2013, Ms. S. filed a paternity petition alleging that Mr. R. was the father of A.. The Monroe County Department of Human Services was added as a necessary party since A. was receiving temporary assistance benefits through that agency. On November 18, 2013, Mr. R. consented to the entry of a paternity order adjudging him to be A.'s father.

On the same date, Ms. S. filed a petition against Mr. R. requesting custody of A. A few days later on November 21, 2013, Mr. R. filed his own custody and visitation petition. On May 6, 2014, the parents stipulated to an order of joint custody with the primary residency of A. with Ms. S. and a schedule of increasing residential parenting time for Mr. R. The order also provided that "while a no contact Order of Protection exists in Father's favor against Mother, the maternal aunt or maternal grandmother shall serve as the communication person between the parties."

On July 8, 2014, Mr. R. filed a petition alleging that Ms. S. violated the court order by denying visitation with A. On October 29, 2014, a stipulated superseding order was made between the parents increasing Mr. R.'s residential time to every Wednesday evening, as well as the alternating weekends that were already in place.

On December 18, 2014, Mr. R. filed an order to show cause alleging that Ms. S. had again violated the order by engaging in domestic violence towards him and that she was in jail. A temporary order was made on December 23, 2014, directing transfers to occur at the Rochester Police Department and directing that "mother's friend T.H.; shall not be present at any of the exchanges." The case was transferred to the Integrated Domestic Violence Court and on April 16, 2016, the parties agreed to a second modification to their custody order changing the times and transfer arrangements.

On January 2, 2018, Mr. R. filed a fifth violation petition alleging that Ms. S. was in contempt of the custody order for failing to provide him with his court ordered parenting time with A. Ms. S. failed to appear for the trial and a decision and order was made on March 27, 2018 adjudicating Ms. S. to be in contempt and suspending sentence pending compliance with the order. In the decision and order, the court found that Mr. R. credibly testified to a long history of interference in his parenting periods by Ms. S., including repeated denials of holiday visits.

The most recent custody proceeding between Ms. S. and Mr. R. was settled on June 7, 2018 with an equal time joint custody agreement where A. spends two weekdays with each parent and the parents alternate weekends from Friday to Sunday. Ms. S. and Mr. R. also agreed that neither would permit Ms. H. to be listed as a parent on any documents concerning A.

FINDINGS OF FACT

Ms. H. testified over multiple days that she considers A. to be her daughter and, with Ms. S.'s agreement, has been involved with A.'s life since her birth. Ms. H. acknowledged that Mr. R. testified that he never agreed to her involvement with A. and that they have had limited, generally unpleasant, contact.

Mr. R. credibly denied knowing that Ms. H. was caring for A. for large blocks of time or that she was making decisions about his daughter. Neither Ms. H. nor Ms. S. advised Mr. R. that Ms. H. spent extended periods with A., or that Ms. H. attended some events generally reserved for parents.

When Mr. R. learned that Ms. H. was calling herself A.'s parent, he strongly objected to both Ms. S. and Ms. H. On several occasions, Mr. R. told Ms. H. that he objected, that he was A.'s father and that she could not fill that role. He feels that Ms. H. is using his daughter to try to change the law and that Ms. S. has allowed A. to spend time with Ms. H. without his knowledge or permission during periods when A. should have been with him under the court orders.

Ms. S. concedes that she invited Ms. H. to help her raise A. and allowed Ms. H. to participate in activities involving A. without Mr. R.'s knowledge or agreement. Ms. S. did not contest Ms. H.'s testimony that she allowed A. to stay with Ms. H. for extended periods of time, including at least one lengthy occasion when Ms. S. was in jail.

Despite various factual discrepancies, all of the parties agree on several essential facts: that there was never a pre-conception agreement to have and raise A., that there was no three-way agreement at any time for Ms. H. to be a parent to A., that Ms. H. never adopted A. and that Ms. H. and Ms. S. were never married or were domestic partners. It is also agreed that neither Ms. S. nor Ms. H. informed Mr. R. that A. was staying overnight with Ms. H. or living with Ms. H. for weeks at a time.

To the contrary, the record supports the conclusion that from a very early date, both Ms. S. and Ms. H. deliberately acted to exclude Mr. R. from A.'s life. For instance, in a text message sent by Ms. S. to Mr. R.'s wife N. on December 17, 2013, approximately one month after Mr. R. had been adjudicated as A.'s father, Ms. S. wrote [exhibit A]:

I'm sorry to contacted [sic] you I don't want to break a happy home but me and my daughter have a happy home too with out [sic] him and I wanted to do [sic] was pretend he didn't exist until my baby her self want [sic] to know him.

Ms. H. admitted that she always knew Mr. R. was A.'s father and described an incident during the summer of 2011 shortly after A.'s birth when Mr. R. came to the house asking to see his daughter. Still, Ms. H. testified that she was "under the impression" that she would be A.'s parent.

From the beginning, the limited contacts between Ms. H. and Mr. R. were contentious, and there was nothing about them that would have allowed Ms. H. to infer that Mr. R. approved of her involvement with A.

Mr. R. testified credibly and in detail about their first encounter in 2010 after Ms. H. and Ms. S. separated. Mr. R. and Ms. S. were at Ms. S.'s home after resuming their intimate relationship. As he was leaving, he asked Ms. S. who was outside the door. Ms. S. told him it was her ex-girlfriend. Ms. H. asked Mr. R. in vulgar terms what he was doing in her house with her girlfriend. Ms. H. told Mr. R. she did not want him around and threatened him. Ms. S. then told Mr. R. to leave and that she would call him later. She told Mr. R. that he should leave because Ms. H. was jealous and obsessed.

This unfortunate encounter set the stage for later contacts in court and at occasional visitation exchanges where Ms. H. was insulting and threatening to Mr. R. and Mr. R. returned insults to Ms. H. During one encounter at court during 2013 or 2014, Mr. R. called court security to intercede with Ms. H. Regrettably, other similar incidents followed and in December 2014, a temporary order was made directing that Ms. H., who was described in the order as a friend of Ms. S., not be at the visitation transfers. Also during that period, Mr. R. had an order of protection against Ms. S. requiring maternal relatives to assist with communication between the parties.

Ms. S. has known both Mr. R. and Ms. H. for over 10 years. Ms. H. and Ms. S. began an intimate relationship in June 2007, Ms. S. and Mr. R. met while working at Walmart in 2006 or 2007.

In the spring of 2010, Ms. H. and Ms. S. broke up and Ms. H. moved out of Ms. S.'s residence. In the fall of 2010, Ms. H. moved back in and lived with Ms. S. and A. until around February 2012, just after A.'s first birthday. After that time, Ms. H. saw A. regularly, but never again resided with Ms. S. or resumed an intimate relationship with her.

Mr. R. and Ms. S. had an occasional sexual relationship beginning in 2006, which continued through the years that Ms. H. and Ms. S. lived together. There is no indication that Ms. H. was aware of Ms. S.'s relationship with Mr. R. or of all the contacts she had with Mr. R. during her pregnancy and after A.'s birth.

In 2010 after Ms. H. moved out of Ms. S.'s home, Mr. R. and Ms. S. became intimate again resulting in the conception of A. According to Ms. S., Mr. R. came to her house daily during a several month period, which continued until five or six weeks after she discovered she was pregnant. Both Mr. R. and Ms. S. agree that Ms. S. told him that she was pregnant. After that, Ms. S. occasionally saw Mr. R. at her bus stop and he brought her a plant on Mother's Day while she was pregnant. They lost touch after that and Ms. S. did not contact Mr. R. when A. was born.

By the time A. was born on February 12, 2011, Ms. H. had moved back to Ms. S.'s home. Ms. H. was present at A.'s birth and participated in A.'s care until she and Ms. S. separated for the final time shortly after A. turned one year old. After that time, Ms. S. allowed Ms. H. to care for A. while she worked.

Mr. R. saw A. at least three times after she was born and before the court proceedings commenced in 2013. Ms. H. was not aware of all of these contacts. Ms. S. brought A. for a visit at Mr. R.'s parents home. After that visit, Ms. S. and Mr. R. lost touch again. Mr. R. stated that the phone numbers changed. Ms. S. testified that Mr. R. "disappeared." Neither Ms. S. nor Ms. H. made any efforts to contact Mr. R. during this period.

In 2013, Ms. S. and Ms. H. had a falling out and Ms. S. stopped allowing A. to go to Ms. H.'s home. It was during this period that Ms. S. filed the paternity petition against Mr. R.

Ms. H. places great weight on Mr. R.'s initial denial of paternity at the start of the paternity case and his request for a DNA test, suggesting this meant that he relinquished his role as a father. Mr. R., however, credibly explained that he was unsure that he was A.'s father because he knew Ms. S. had other partners, including a friend of his. After he learned he was A.'s father, he immediately filed the custody and visitation petition because Ms. S. would not let him see his daughter. He has had to return to court many times to enforce his right to see A.

Ms. H. submitted into evidence pictures and videos of A. showing her involvement in activities with A. She testified to her attendance at important events in A.'s life, which Mr. R. did not attend. Significantly, neither Ms. H. nor Ms. S. informed Mr. R. about any of the events. The failure of Ms. S. and Ms. H. to inform Mr. R. of these important events provides further proof of their intent to exclude Mr. R. from A.'s life.

Ms. H. has held herself out to be A.'s parent to school personnel, causing great confusion. Ms. H. testified that she attended a father-daughter event at A.'s school in 2017, an event that was never mentioned to Mr. R. This has caused difficulties for Mr. R., who has now taken steps for Ms. H. to be barred from the school. According to Mr. R., Ms. S. has also complained to him about Ms. H.'s picking up A. without permission from school.

Ms. H. went so far as to claim A. as her dependent daughter on her income taxes as recently as 2017. She did not testify to why she did that or whether there were consequences with the tax authorities.

Mr. R. feels that Ms. H. contributed to the difficulties he has had in having consistent visitation. The record supports his belief, especially since Ms. H. testified that she has had A. for substantial blocks of time, including holidays, when A. was to be with her father under the custody order. While it was not Ms. H.'s responsibility to assure that the time she spent with A. did not interfere with Mr. R.'s residential periods, the fact that it often interfered has contributed to the antipathy among the parties.

Discussion

i.

In 2016, the Court of Appeals ruled that when a the partner of a biological parent proves "by clear and convincing evidence that the parties agreed to conceive a child and raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law §70" (In the Matter of Brooke S.B. v. Elizabeth A.C.C. , 28 NY3d 1, 14 [2016]). This landmark decision overruled In the Matter of Alison D. v. Virginia M., 77 NY2d 651 [1991], which narrowly defined the term "parent" under Domestic Relations Law §70 to include only biological and adoptive parents.

The parties in Brooke S.B. were a non-marital female couple who made a pre-conception agreement to jointly raise a child who one partner would carry. After the baby's birth by artificial insemination, the parties jointly parented the child and the non-biological partner stayed at home to care for the baby while the biological mother returned to work. A few years after the child was born, the parties separated. Ultimately, the biological mother "effectively terminated" her former partner's contact with the child (see 28 NY3d at 15). The non-biological partner filed a petition seeking joint custody and visitation, which was dismissed by the Family Court for lack of standing and affirmed by the Appellate Division in reliance on Alison D.

The Court of Appeals reversed, limiting its decision to the facts of the case and holding that where an individual proves by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as "co-parents,"standing as a parent is established under Domestic Relations Law §70 ("the conception test") sufficient to seek custody or visitation (28 NY3d at 27-28). The Court specifically declined to decide "[w]hether a partner without such agreement can establish standing and, if so, what factors a petitioner must establish to achieve standing based on equitable estoppel.." (28 NY3d at 28).

In carefully crafting its decision, the Court recognized the need to protect the fundamental rights of biological and adoptive parents to raise their children citing Troxel v. Granville, 530 US 57, 64-65 (2000). Recognizing the fundamental nature of parental liberty interests, the Court determined that caution is required if the definition of parent is expanded, making "the element of consent of the biological and adoptive parent critical"(28 NY3d at 26).

In Troxel, the Supreme Court outlined the long and well-established fundamental liberty interest of parents to make decisions regarding their children's lives noting that parents are normally in the best position to determine what is in their child's best interest (see Troxel v. Granville, 530 US 57, 69 citing Parham v. J.R., 442 US 584, 602 [1979] citations omitted ). The Court concluded that "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children" (530 US at 67).

Applying these principles, the court is required to use great care when considering whether to interfere with the essential constitutional rights of a parent. Mr. R. strenuously objects to Ms. H.'s request that she be treated as a parent and that she be granted one-third custody regarding A. In accordance with Brooke S.B., Mr. R.'s lack of consent is "critical" to the court's determination of whether a third party may be granted standing as a parent (28 NY3d at 26).

As an alternative, Mr. R. suggests that Ms. H., as a friend of Ms. S., can continue to see A. during Ms. S.'s parenting time in the same way his wife, A.'s step-mother, spends time with A. when A. is with her father.

Ms. H. argues that Mr. R. is estopped from contesting her standing to bring this petition because he tacitly consented to her parenting A. after A.'s birth and based upon estoppel she is entitled to standing as a parent. Even if equitable estoppel is applied to this case as suggested by Ms. H., the proof does not support a finding that Mr. R. was either aware of Ms. H.'s involvement with A. or that he tacitly, or otherwise, acquiesced in her involvement. Furthermore, a fair review of the record permits a reasonable inference that both Ms. H. and Ms. S. did not want Mr. R. to be involved with A. and that they acted to interfere with his contacts with his daughter.

Additionally, since equitable estoppel is grounded in the best interests of the child (see 28 NY3d at 28), even if equitable estoppel applied here and Ms. H. were granted standing, it would not in the court's view be in A.'s best interest to have a tripartite custody arrangement here given the animus between Ms. H. and Mr. R. and the history of interference with Mr. R.'s parenting time with A. (see Braiman v. Braiman, 44 NY2d 584, 587 [1978] joint custody was not appropriate where parents were "persistently and severely embattled").

ii.

In Brooke S.B. the Court of Appeals declined to determine what test should be applied when "a couple has not entered into a pre-conception agreement" (28 NY3d at 28). Nor did Brooke S.B. address whether its holding should be applied to a third party non-parent (28 NY3d at 26).

Two New York trial courts have grappled with that last issue and determined that Brooke S. B. does apply when multiple parties, including a non-biological party, entered into a pre-conception agreement to jointly raise a child and actively co-parented the child. The facts of both decisions, however, are distinguishable from the case here and involve the pre-conception consent of the biological parent or parents to have and co-parent the child with a third party combined with a substantial history of co-parenting with the consent of the parent or parents by the third party after the birth of the child.

In Matter of David S. et al v. Samantha G., 59 Misc 3d 960 [Fam Ct, New York County 2018], a married male couple and a single woman agreed that they would conceive and jointly raise a child. Over an eight day period, the men alternated giving their semen to the mother for artificial insemination. After the birth, a DNA test determined which spouse was the biological father. When disagreements occurred among the parties, the two men filed a petition for joint custody and shared time with the child. A key factor in determining that the non-biological spouse had standing and that a tri-parent custody order was in the child's best interest was that the two biological parents agreed to the pre-conception plan to jointly parent the child with the father's spouse (59 Misc 3d 965-966).

Similarly, in Matter of Dawn M. v. Michael M., 55 Misc 3d 865 [Sup Ct, Suffolk County 2017) the husband, wife and the child's biological mother all agreed to have a child together and lived together with the child for over 18 months after the baby was born. The married couple divorced and the former wife and biological mother lived together with the child. The former wife had been allowed by both biological parents to act as the child's parent over the 10 years of the child's life. Under these circumstances, the court held that it was in the best interests of the child for a tri-parent custody order to be made.

This case differs from David S. and Dawn M. in major respects. Not only was there no pre-conception agreement by the three parties here, but David S. and Dawn M. involved married couples who entered a pre-conception agreement with a third party. Since married couples were involved, the presumption of legitimacy, which presumes that a child born during a marriage is the child of the marriage, strengthened the non-biological spouse's claim of parenthood. Although the court in David S. found that the presumption of legitimacy did not impact its decision and the presumption was not specifically addressed in Dawn M. (see e.g., Christopher YY v. Jessica ZZ., 159 AD3d 18 [3rd Dept 2018]; In re Maria Irene D., 153 AD3d 1203 [2017]), the presumption applied in those cases.

In Matter of Christopher YY v. Jessica ZZ, cited by Ms. H., the court applied the presumption of legitimacy and equitable estoppel to preclude the petitioning putative father from asserting paternity. The petitioner donated his semen so that a female married couple could have a child. He entered into a written agreement with the biological mother of the child and her wife that he would not assert paternity and waived all right to custody or visitation. The fact that the biological father had agreed to forgo his parental rights and duties was central in estopping him from asserting paternity.

These decisions do not support Ms. H.'s claim that she has standing as a parent or that, even if she had standing, that a tri-party custody arrangement should be granted. There was no agreement among the parties here and no consent by Mr. R. Nor does the presumption of legitimacy apply since none of the parties were married.

iii.

Even if the court were to apply equitable principles as suggested by Ms. H., her petition would fail. While the court agrees that the Brooke S.B. holding applies to a three party case involving two biological parents and a third party, Ms. H.'s fails not only to prove a pre-conception agreement, but also fails to satisfy the guiding principles of Brooke S.B., which include at a minimum the need for clear and convincing proof, consent of the parent and careful consideration of the fundamental constitutional rights of the parents.

Prior to Brooke S.B., courts applied equitable estoppel to prevent an individual from denying paternity where a child reasonably relied on the individual's actions and statements that he was the child's parent (see e.g. Matter of Ettore I. v. Angela D. ,127 AD2d 6, 13-14 [2nd Dept 1987]).

Although Brooke S.B. was not a paternity case, the Court of Appeals noted that the Court had expanded the term parent in the paternity context to include a man who held himself out to be a child's parent and acted in every way as a parent, precluding him from denying paternity based on equitable estoppel (see Matter of Shondel J. v. Mark D., 7 NY3d 320, 326 [2006]).

"(T)he doctrine of equitable estoppel may successfully be invoked, in the interest of fairness, to prevent the enforcement of rights which would ultimately work fraud or injustice upon the person against whom enforcement is sought" (Matter of Ettore I. v. Angela D., 127 AD2d at 12, citations omitted). More to the point, the doctrine's purpose is to "preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted" (Matter of Shondel J. v. Mark D., 7 NY3d at 326). In this case, Ms. H. contends that Mr. R. should be estopped from opposing her petition based upon his words and conduct, which she argues showed he consented directly or indirectly to her developing a parent-like relationship with A.

Even if equitable estoppel were applied here, the court must be guided by the Court of Appeals's observation in Brooke S.B. that "[w]e must, however, protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children (28 NY3d at 26, citing Matter of Alison D. v. Virginia M., 77 NY2d at 656-657 and Troxel v. Granville, 530 U.S. 57, 65 [2000]), and that the "fundamental nature of those rights mandates caution in expanding the definition of that term and makes the element of consent of the biological or adoptive parent critical" (28 NY3d at 26).

Ms. H. presented no proof that she relied to her detriment on any of Mr. R.'s words or actions. While Ms. S. told Ms. H. early on that she did not think Mr. R. wanted anything to do with A., the record is devoid of any words or actions by Mr. R. by which he could have "misled (Ms. H.) into a detrimental change of position" (Matter of Shondel J. v. Mark D., 7 NY3d at 326, citation omitted).

Moreover, A., who was just over two years old when Ms. S. filed her paternity petition against Mr. R. and well under three years old when Mr. R. was adjudicated as her father, was too young to have knowingly relied on any relationship she and Ms. H. may have formed, especially when visits with Mr. R. began shortly thereafter (see Matter of Felix M. v. Leonarda R.C., 118 AD3d 886, 887 [2nd Dept 2014], reversing Family Court's application of equitable estoppel against petitioner in paternity case where child was three years old when petitioner learned from the mother that he was not the child's father; Matter of Cleophous P. Jr. v. Latrice M.R., 299 AD2d 936 [4th Dept 2002], reversing Family Court's application of equitable estoppel where parties' relationship ended when the child was "two or three years old").

Likewise, Mr. R. cannot be deemed to have acquiesced to a relationship between Ms. H. and A. (see, e.g., Matter of Bernard S. v. Vanessa A.F., 160 AD3d 750, 751-752 [2nd Dept 2018]; Purificati v. Paticos, 154 AD2d 360, 361 [2nd Dept 1989]; Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 6 [2010]). Mr. R. was unaware that Ms. H. was caring for A. for extended periods of time and, upon learning of Ms. H.'s involvement in A.'s care, objected to both Ms. H. and Ms. S.

To the extent that the child's best interests are at issue in the application of the principles of equitable estoppel (see Matter of Shondel J. v. Mark D., 7 NY3d at 326), the court observes that Ms. S. and Mr. R. now equally share custody of A. Ms. H. has stated that she does not seek to reduce Mr. R.'s parenting time with A. or to impact his parental rights. In light of the current 50/50 joint parenting agreement between the parents, a three-way shared parenting arrangement would likely be unworkable. A parenting plan that only impacts Ms. S.'s parenting time would substantially reduce A.'s time with her mother and siblings and is unlikely to be in A.'s best interest.

Moreover, a tri-party joint custody arrangement as requested by Ms. H. would require the three parties to make decisions about A. together. Based on the testimony presented, the court concludes that Ms. S., Mr. R. and Ms. H. are extremely unlikely to be able to jointly make even the most basic decisions about A.'s education and care. Finally, the most recent custody order of June 7, 2018 between Mr. R. and Ms. S. requires that Ms. H. not be listed as a parent on any documents concerning A.

Mr. R. also argues that Ms. S. should be judicially estopped from supporting Ms. H.'s petition because she filed and participated not only in the paternity action resulting in Mr. R.'s adjudication as Ahamanie's father, but participated in numerous legal proceedings (see In the Matter of Estrellita A. v. Jennifer L.D., 28 NY3d 1, 28-29 [2016] decided with Brooke S.B.). Mr. R. asserts that he has relied on Ms. S.'s representations that he is the only parent and has filed multiple petitions to assure enforcement of his court order parenting time with his daughter.

Although judicial estoppel may be relevant to the determination of standing in a custody case, in light of the court's decision the court need not determine that issue. Moreover, since the trial in this case, Ms. S. agreed to an equally shared custody order with Mr. R. that includes a provision that prohibits the parents from listing Ms. H. as a parent on documents concerning A. or permitting Ms. H. to enroll or apply for services or activities for A.

The motion to dismiss for lack of standing is granted and the petition and amended petition are dismissed.

This shall constitute the Order and Decision of the Court. Dated: August 9, 2018 Rochester, New York JOAN S. KOHOUT Family Court Judge