Opinion
309154/2016
01-18-2019
K.G., Petitioner, v. C.H., Respondent.
This motion sequence (No. 5) is the first subsequent to the June 26, 2018 order of the Appellate Division, First Department, in which this matter is remanded to this court for consideration of equitably estopping respondent from denying the parentage of petitioner of her son, A H, born December 26, 2009.
INTERIM ACCESS
With respect to the branch of this motion by petitioner for an order of access time with A H pending completion of the evidentiary hearing and the rendering of this Court's decision on the legal theory of equitable estoppel, petitioner urges the Court to "not overly concern itself with a specific statute or the existing case law" but, rather, apply the principles of the best interests of the child in determining all manner of visitation sought by any (presumably competent) non-biological, non-adoptive putative parent during the pendency of that putative parent's petition seeking an order of judicially-determined parenthood.
In seeking interim access, petitioner also relies upon this Court's prior finding that access was warranted to maintain consistency with the child's experience with petitioner as acknowledged by respondent-mother, as set forth in the record of September 13, 2016.
Respondent opposes the resumption of access to her child by petitioner inasmuch as there is no extant statutory or common law authority providing for access with one who is neither a biological, adoptive or judicially determined parent. Respondent further asserts to provide petitioner with access at this juncture would be to reward her "playing Three Card Monte with her legal theories," resulting in this remand and the concomitant delay in a final determination of the petition. The history of this matter provides significant validation of this position. Repeatedly throughout the initial 36-day, 4,738-page hearing in this matter, petitioner rejected this Court's offers -- if not entreaties -- to proceed on her unpled legal theory of equitable estoppel. On appeal thereafter, petitioner argued that she suffered harm by the Court's failure to permit her to proceed on her unpled legal theory of equitable estoppel. Petitioner succeeded in that argument on appeal as that Court determined the best interests of the child to be paramount, irrespective of any shortcomings in petitioner's pleadings related to equitable estoppel or respondent's claim that petitioner had waived the issue.
It is, therefore, ineluctable that this Court must address the instant application for interim access in view of the child's best interest, notwithstanding the absence of specific statutory authority or applicable case law, as noted by the respondent.
Therefore, in order that the Court may determine whether the best interests of the child, A H, warrants the resumption of access to petitioner during the pendency of this matter and, if so, the duration, location, and other terms of that access, the parties and the attorney for the child are directed to appear for a hearing framed by this issue, to be conducted commencing at 10:00a.m., Tuesday, March 5, 2019.
APPOINTMENT OF FORENSIC EVALUATOR AND ATTORNEY FOR THE CHILD
Further to the Court's determination of the petition on the legal theory of equitable estoppel, petitioner moves for appointment of a neutral forensic evaluator and the appointment of an attorney for the child. By separate orders dated December 19, 2018 those motions have been granted.
CRITERIA FOR EQUITABLE ESTOPPEL
The parties urged this Court to establish criteria for equitable estoppel in order that any appointed forensic expert, as well as all others concerned with the orderly progression of this matter, be properly guided. The elements of equitable estoppel are established by this Court as set forth below. Prior to the date of this order, the parties had been provided the opportunity to object to any or all elements of these criteria on any ground appropriate, particularly in view of objections previously asserted that disputes of this nature present an inherent heightened legal barrier to nontraditional family members. Those objections were found to be entirely without merit by the Appellate Division (163 AD3d 67, 78-79 ). This Court maintains the concern that no criteria here established present any heightened legal barrier, or any unique challenge or unique difficulty whatsoever for members of LGBTQ or other nontraditional families. To date, neither party has presented any objection, and the Court remains available to address any objection which may come to light as this matter proceeds.
A number of similar petitions are currently in various stages of litigation within and without the State of New York, and a number of courts are contemporaneously establishing criteria for equitable estoppel as a result of the different records made on different days (as presciently predicted by the Court in Brooke S.B. v. Elizabeth A.D.D., 28 NY3d 1, 28 ). Therefore, for purposes of distinct reference and clarity, the following criteria shall be designated:
JUDGE NERVO's CRITERIA FOR EQUITABLE ESTOPPEL
The ultimate determination of parenthood shall be predicated upon the best interests of the child. In consideration thereof, the court will determine and consider the extent to which the petitioner, by clear and convincing evidence:
(1) undertook full and permanent fiscal responsibilities for the child without expectation of financial compensation;
(2) resided with the child;
(3) affirmatively held out the child as her own, or what objective observation of the relationship by others in their community would demonstrate;
(4) otherwise engaged in consistent caretaking of the child;
(5) had been in a parental role for a length of time sufficient to have established with the child a bonded, dependent, parental relationship;
(6) is recognized or acknowledged as parental by the child;
(7) has a close and deep emotional bond with the child;
(8) bonded a dependent relationship with the child, supported, or facilitated, affirmatively or impliedly, by the legal parent;
(9) engaged in decision-making with the legal parent with respect to major issues concerning the child including, but not limited to, health, welfare, education, and any participation in organized religion;
(10) is or was part of any formalized relationship with the legal parent and/or the child; and
(11) how the abrupt, or continued, termination from any and all contact with the petitioner has, or would continue to, adversely affect the child, if at all.
RESPONDENT'S CROSS MOTION SEEKING LEGAL FEES
Respondent cross-moves for legal fees and costs. Many of the issues raised by this petition are not unlike those in innumerable disputes involving custody, access, and other matters relating to children about which the parties have raised justiciable questions. In this case the stakes are as high as any, the ultimate issue being a claim to parenthood of respondent's child. Consequently, this matter urgently warrants a levelling of the proverbial playing field.
The evidence adduced to date, as well as the parties' net worth statements, demonstrate the petitioner is by far the more monied party. The Court therefore grants respondent's cross-motion for to the extent of $ 200,000.00 for future counsel fees, without prejudice to further application. The Court reserves decision with respect to respondent's application for past counsel fees, pending a hearing framed on that issue, at a date to be determined.
IT IS THEREFORE:
ORDERED that respondent's application for future counsel fees is granted to the extent of $ 200,000.00; and it is further
ORDERED that petitioner shall remit $ 200,000.00 for allocation to respondent's future legal fees, to (ATTORNEYS LLP, New York, New York), within thirty (30) days of service of this Order upon her with notice of entry.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.