| Debra H. v Janice R. |
| 2009 NY Slip Op 02723 [61 AD3d 460] |
| April 9, 2009 |
| Appellate Division, First Department |
| Debra H., Respondent, v Janice R.,Appellant. |
—[*1] Lambda Legal Defense and Education Fund, Inc., New York (Susan L. Sommer of counsel),for respondent. Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Jennifer L. Colyer of counsel), forthe child. Kramer Levin Naftalis & Frankel LLP, New York (Eve Preminger of counsel) for TheNational Association of Social Workers, The National Association of Social Workers' New YorkState Chapter and The National Association of Social Workers' New York City Chapter, amicicuriae. Matthew Faiella, New York, for New York Civil Liberties Union, amicus curiae. Rose Saxe, New York, for American Civil Liberties Union, amicus curiae.
Order, Supreme Court, New York County (Harold B. Beeler, J.), entered October 9, 2008,which granted a hearing on whether petitioner stands in loco parentis to respondent's biologicalchild and whether respondent should be equitably estopped from denying that parentalrelationship, and appointed a law guardian to represent the child's best interest, unanimouslyreversed, on the law, without costs, the order vacated, the petition denied and this proceedingdismissed.
Petitioner seeks joint legal and physical custody of respondent's biological child, bornapproximately one month after the parties entered into a civil union in the State of Vermont, and[*2]more than two months after they registered as domesticpartners in New York City. Although the record indicates that petitioner served as a loving andcaring parental figure during the first 2½ years of the child's life, she never legally adoptedthe child.
This matter is governed by the Court of Appeals decision in Matter of Alison D. vVirginia M. (77 NY2d 651 [1991]), which provides that a party who is neither the biologicalnor the adoptive parent of a child lacks standing to seek custody or visitation rights underDomestic Relations Law § 70, even though that party may have developed a longstanding,loving and nurturing relationship with the child and was involved in a prior relationship with thebiological parent.
Supreme Court concluded that denial of petitioner's right to invoke equitable estoppel hereinwould be inconsistent with the application of that doctrine in similar proceedings (see e.g. Matter of Shondel J. v MarkD., 7 NY3d 320 [2006]; Jean Maby H. v Joseph H., 246 AD2d 282, 285[1998]). However, to the extent such inconsistencies exist, our reading of precedent is such thatthe doctrine of equitable estoppel may not be invoked where a party lacks standing to assert atleast a right to visitation (seeAnonymous v Anonymous, 20 AD3d 333 [2005]; Matter of Multari v Sorrell,287 AD2d 764 [2001]).
Our conclusion that petitioner lacks standing renders academic respondent's claim thatSupreme Court improvidently exercised its discretion by appointing a law guardian in thismatter.
Motion seeking leave to strike brief denied. Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ.