| Counihan v Bishop |
| 2013 NY Slip Op 07149 [111 AD3d 594] |
| November 6, 2013 |
| Appellate Division, Second Department |
| Mercedes Counihan, Appellant, v Molly Bishop,Respondent. |
—[*1] Mejias, Milgrim & Alvarado, P.C., Glen Cove, N.Y. (David L. Mejias, RandiMilgrim, and Katherine Lindo of counsel), for respondent. Susan L. Sommer, New York, N.Y. (Keith Hammeran of counsel), and DrexelGrande LLC, New York, N.Y. (Allen A. Drexel and William P. Gross of counsel), foramicus curiae Lambda Legal Defense and Education Fund, Inc.
In an action for a divorce and ancillary relief, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Bivona, J.), dated February 15, 2013, which,without a hearing, denied her motion for custody of the parties' child, or in thealternative, visitation with the child, and granted that branch of defendant's cross motionwhich was for sole custody of the child. By decision and order on motion dated March25, 2013, this Court granted that branch of the plaintiff's motion which was for visitationwith the child pending the hearing and determination of the appeal.
Ordered that the order dated February 15, 2013, is reversed, on the law, with costs,and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and,thereafter, a new determination of the motion and cross motion; and it is further,
Ordered that pending the hearing and the new determination, the visitation scheduleset forth in the decision and order on motion of this Court dated March 25, 2013, shallremain in effect.
In May 2009, the plaintiff and the defendant traveled to Connecticut to be married,and then returned to live in their home in New York. Subsequently, they decided to havea child, the defendant was artificially inseminated, and, in September 2010, the defendantgave birth to a child. The plaintiff is listed as the second mother on the child's birthcertificate, and the child's last name is the hyphenated last names of the plaintiff and thedefendant. In 2012, the parties separated, and the defendant and the child lived apartfrom the plaintiff for several months. However, the plaintiff continued to see the child afew times per week, which included overnight visits. The parties briefly lived with eachother again at the end of 2012, but their attempt to reconcile failed, and the defendantagain moved with the child to another residence.
In January 2013, the plaintiff commenced this action for a divorce and ancillaryrelief, [*2]and sought, by order to show cause, custody ofthe child, or in the alternative, visitation. The defendant cross-moved, inter alia, for solecustody of the child. In the order appealed from, the Supreme Court, determining that theplaintiff lacked standing to seek custody or visitation because she was not the child'sbiological or adoptive parent, without a hearing, denied the plaintiff's motion and grantedthat branch of the defendant's cross motion which was for sole custody.
Although, at the time of the child's birth, New York had not yet enacted the MarriageEquality Act (see L 2011, ch 95), affording comity to the parties' Connecticutmarriage, the Supreme Court should have recognized the plaintiff as the child's parentunder New York law (see DebraH. v Janice R., 14 NY3d 576, 599-601 [2010]; Matter of Ranftle, 81 AD3d566, 567 [2011]; LauraWW. v Peter WW., 51 AD3d 211, 217 [2008]; see also DomesticRelations Law § 73 [1]). Thus, the Supreme Court erred in determining that theplaintiff lacked standing to seek custody or visitation with regard to the subject child.Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearingand, thereafter, a new determination of the motion and cross motion.
In light of our determination, we need not reach the plaintiff's remaining contentions.Eng, P.J., Balkin, Lott and Roman, JJ., concur.