| Matter of Arriaga v Dukoff |
| 2014 NY Slip Op 08990 [123 AD3d 1023] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Estrellita Arriaga,Respondent, v Jennifer L. Dukoff, Appellant. |
Margaret Schaefler, Hauppauge, N.Y., for appellant.
Kramer Levin Naftalis & Frankel LLP, New York, N.Y. (Jeffrey S. Trachtmanand Andrew J. Estes of counsel), and Gervase & Mintz P.C., Garden City, N.Y.(Susan G. Mintz of counsel), for respondent (one brief filed).
Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), attorney forthe child.
Appeal from an order of the Family Court, Suffolk County (Theresa Whelan, J.),dated September 11, 2013. The order, insofar as appealed from, granted EstrellitaArriaga's petition to the extent of awarding her visitation with the subject child.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
Estrellita Arriaga and Jennifer L. Dukoff were involved in a romantic relationshipand began living together in December 2003. They registered as domestic partners in2007, and thereafter decided to have a child through artificial insemination, using ananonymous sperm donor. Dukoff became pregnant in February 2008 and gave birth to adaughter (hereinafter the child) in November 2008. Arriaga was present during theinsemination procedure and the birth of the child. Dukoff and Arriaga shared in theresponsibilities of taking care of the child, and they agreed she would call Dukoff"mommy" and Arriaga "mama." However, Arriaga never adopted the child.
Dukoff and Arriaga ended their romantic relationship in May 2012, and Arriagamoved out of their home in September 2012, when the child was almost four years old.After Arriaga moved out, she continued visiting with the child several days a week.
In October 2012, Dukoff filed a petition in the Family Court seeking child supportfrom Arriaga. Following a hearing on the issue of equitable estoppel, the Family Courtissued an order dated January 16, 2013, wherein it determined that "the uncontrovertedfacts establish" that Arriaga "is a parent to [the child]; and as such is chargeable with thesupport of the child."
During the pendency of the support proceeding, Arriaga commenced this proceeding[*2]pursuant to Family Court Act article 6 seekingcustody or visitation. After the Family Court issued the January 16, 2013, order in thesupport proceeding, Arriaga filed an amended petition in this proceeding, asserting thatshe had been adjudicated a parent of the child in the support proceeding and wastherefore seeking custody or visitation as the child's "adjudicated parent." She did notdispute that Dukoff was a fit parent. Dukoff moved to dismiss the petition on the groundthat Arriaga did not have standing under Domestic Relations Law § 70 tocommence such a proceeding, since she was not a biological or adoptive parent of thechild.
In an order dated April 2, 2013, the Family Court denied Dukoff's motion on theground that Dukoff was judicially estopped from arguing in this proceeding that Arriagawas not a parent of the child, since she had asserted in the support proceeding thatArriaga was a parent of the child, and had secured a child support award on that basis (see Estrellita A. v Jennifer D.,40 Misc 3d 219 [Fam Ct, Suffolk County 2013]). The court noted that, in colloquialterms, the relief sought by Dukoff was known as " 'having your cake and eatingit too' " (id. at 224).
The Family Court then conducted a hearing to determine the best interests of thechild. During the hearing, Arriaga indicated that she was not seeking physical custody ofthe child. Rather, she was seeking visitation and decision-making authority on issuesrelated to the child's health, education, and welfare.
After the hearing, the Family Court issued an order dated September 11, 2013,granting Arriaga's petition to the extent of awarding her visitation with the child andsetting forth a visitation schedule, subject to certain conditions that are not relevant tothis appeal. The court directed that Dukoff shall retain legal and physical custody of thechild and final decision-making authority "after thoughtful consideration of [Arriaga's]input before making a decision."
Dukoff appeals from the September 11, 2013, order. She does not challenge theFamily Court's best interests finding, but argues that the court's conclusion that Arriagahad standing to commence this proceeding is contrary to the Court of Appeals' holdingsin Debra H. v Janice R. (14NY3d 576 [2010]) and Matter of Alison D. v Virginia M. (77 NY2d 651[1991]). We disagree with Dukoff's contentions.
Domestic Relations Law § 70 (a) provides, in part, that "eitherparent may apply to the supreme court for a writ of habeas corpus to have such minorchild brought before such court; and [the court] may award the natural guardianship,charge and custody of such child to either parent . . . as the case mayrequire" (emphasis added). This statute has also been construed to grant standing to" 'either parent' " to apply for a writ of habeas corpus to determine theissue of visitation rights (Matter of Alison D. v Virginia M., 155 AD2d 11, 13[1990], affd 77 NY2d 651 [1991]). In Debra H., the Court of Appealsreaffirmed its holding in Matter of Alison D. that the term "parent" in DomesticRelations Law § 70 encompasses only the biological parent of a child or alegal parent by virtue of adoption and that a "de facto parent" or "parent by estoppel"could not seek visitation with a child who is in the custody of a fit parent (Debra H. vJanice R., 14 NY3d at 590 [internal quotation marks and emphasis omitted];Matter of Alison D. v Virginia M., 77 NY2d at 656 [internal quotation marksomitted]). In Debra H., however, the Court analyzed the significance of the civilunion the parties had entered into in Vermont prior to the child's birth. The Courtdetermined that, under Vermont law, a child born during a civil union was a child of bothpartners. Thus, it concluded, Debra H. was the child's parent under Vermont law. As amatter of comity, the Court recognized her as the child's parent under New York law aswell, thereby conferring standing for her to seek visitation and custody at a best interestshearing (see Debra H. v Janice R., 14 NY3d at 601).
The Court of Appeals noted that recognizing Debra H. as a parent did not conflictwith the public policy of New York and would not "undermine the certainty thatAlison D. promises biological and adoptive parents and their children," since"whether there has been a civil union in Vermont is as determinable as whether there hasbeen a second-parent adoption. And both civil union and adoption require the biologicalor adoptive parent's legal consent, as opposed to the indeterminate implied consentfeatured in the various tests proposed to establish de facto or functional parentage"(Debra H. v Janice R., 14 NY3d at 600-601). At the heart of the Court's [*3]reasoning in Debra H. was a desire to provide abright-line rule affording certainty and predictability to parents and children. The Courtexpressed concern that an equitable estoppel hearing would create protracted litigationon the issue of standing.
In this proceeding, Arriaga asserts that she has standing as a parent of the childpursuant to the doctrine of judicial estoppel. Under that doctrine, " 'a party whoassumes a certain position in a prior legal proceeding and secures a favorable judgmenttherein is precluded from assuming a contrary position in another action simply becausehis or her interests have changed' " (Barker v Amorini, 121 AD3d 823, 824 [2014], quoting GECMC 2007-C1 Burnett St., LLCv Hoti Enters., L.P., 115 AD3d 642, 643 [2014]; see Matter of Mukuralinda vKingombe, 100 AD3d 1431, 1432 [2012]; Bono v Cucinella, 298 AD2d483, 484 [2002]; Anonymous v Anonymous, 137 AD2d 739, 741 [1988]).
The concerns expressed by the Court of Appeals in Debra H. are notimplicated in the present case, where Arriaga invoked the doctrine of judicial estoppel,not equitable estoppel. No hearing was required to decide whether the doctrine ofjudicial estoppel applies in this case, nor did the determination involve a "complicated"or "nonobjective test" (Debra H. v Janice R., 14 NY3d at 594). Just as inDebra H., whether Arriaga was adjudicated a parent of the child was "asdeterminable as whether there has been a second-parent adoption" (id. at600).
Moreover, just as in second-parent adoptions, the adjudication of Arriaga as a parentof the child required the biological mother's affirmative legal consent, "as opposed to theindeterminate implied consent featured in the various tests proposed to establish de factoor functional parentage" (id. at 600-601). Indeed, here, Dukoff was the party whosought to have Arriaga adjudicated a parent. Although Dukoff did not consent toadjudicating Arriaga a parent of the child for the purposes of visitation rights, thebiological mother in Debra H. also did not do so. In Debra H., thebiological mother argued that she entered into the legal union in Vermont believing thatit was of no legal significance in New York (see id. at 600).
Dukoff emphasizes that the Court of Appeals stated in Debra H. that it saw"no inconsistency in applying equitable estoppel to determine filiation for purposes ofsupport, but not to create standing when visitation and custody are sought" (id. at593). However, here, the Family Court did not rely on equitable estoppel to establishstanding. It relied on the doctrine of judicial estoppel, which, for the reasons discussedabove, differs from establishing parentage by equitable estoppel.
Dukoff further asserts that the Family Court erred in allowing Arriaga to benefit fromthe doctrine of judicial estoppel while precluding Dukoff from invoking the samedoctrine based on the position taken by Arriaga in the support proceeding. However, thedoctrine of judicial estoppel is not applicable to Arriaga because she did not obtain afavorable judgment in the support proceeding (see Matter of A.F. v K.H., 121 AD3d 683 [2014]).
Accordingly, the Family Court properly denied Dukoff's motion to dismiss thepetition. Rivera, J.P., Roman, Duffy and Barros, JJ., concur.