In a recent, unusual decision the Supreme Court, Suffolk County (H. Patrick Leis, III, J.), awarded a 10-year old boy three parents. The unusual facts of the case justified this unusual result.
The case, Dawn M. v. Michael M., 47 NYS3d 898, 2017 WL 923725 (Supreme Court, Suffolk Cty., 3/8/2017), involved a husband and wife who were trying to get pregnant. Despite the fertility treatments, the wife miscarried. When her best friend, Audria, split up with her boyfriend, she was invited to live with the couple. After a while they became a family and all three decided to have a child together. Their doctor didn’t want to perform artificial insemination because Audria wasn’t married to the husband so they decided to go the old-fashioned route. They had a son, J.M., and Audria and the wife shared the parenting duties of raising him.
In 2008 the marriage deteriorated and Audria, the wife and J.M. moved away from the husband. The husband, the natural father, sued Audria for custody and they agreed to share joint custody of J.M.
The wife, Dawn, realized, however, that her continued access to J.M. would depend on the continued willingness of either the husband or Audria to allow her to do so. Fearful of her status, she too sought joint “tri-custody” of J.M. in her divorce action.
The Court noted that our Court of Appeals last year in Brooke S.B. v. Elizabeth A.C.C. held that a non-biological parent can have standing to seek visitation and custody where the parent can establish that the parties had agreed to conceive and raise the child together. The Court therefore held that the reasoning of Brooke S.B. applied here as well, and allowed Dawn to share “tri-custody” of J.M. with Audria and her former husband. (To read the Court’s decision, click here.)