| Matter of Barone v Chapman-Cleland |
| 2015 NY Slip Op 05306 [129 AD3d 1578] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Brooke S. Barone,Respondent, v Elizabeth A. Chapman-Cleland, Respondent. R. Thomas Rankin,Attorney for the Child, Appellant. |
R. Thomas Rankin, Attorney for the Child, Jamestown, appellant pro se.
Brooke S. Barone, petitioner-respondent pro se.
Sherry A. Bjork, Frewsburg, for respondent-respondent.
Appeal from an order of Family Court, Chautauqua County (Judith S. Claire, J.),entered January 24, 2014 in a proceeding pursuant to Family Court Act article 6. Theorder dismissed the petition for custody and visitation.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner commenced this proceeding pursuant to Family Court Actarticle 6, seeking custody and visitation with the son of respondent, her former same-sexpartner. The Attorney for the Child (AFC) appeals from an order dismissing the petitionon the ground that petitioner was not married to respondent and did not adopt the child,and thus lacked standing to seek custody of, or visitation with, him. We affirm.
The AFC contends that, because the best interests of the child are paramount incustody and visitation disputes, "the standing accorded to parents should extend to thosewho have a recognized and operative parent-child relationship, regardless of their sexualorientation." The AFC further contends that the doctrine of equitable estoppel shouldapply to bar respondent from denying that petitioner is a parent of the subject child, andthus we should conclude that petitioner has standing to seek custody and visitation.Those contentions are without merit. "[T]he Court of Appeals has recently reiterated thata nonbiological, nonadoptive parent does not have standing to seek visitation when abiological parent who is fit opposes it, and that equitable estoppel does not apply in suchsituations even where the nonparent has enjoyed a close relationship with the child andexercised some control over the child with the parent's consent" (Matter of Palmatier v Dane, 97AD3d 864, 865 [2012]; seeDebra H. v Janice R., 14 NY3d 576, 589-597 [2010], rearg denied 15NY3d 767 [2010], cert denied 562 US 1136 [2011]; Matter of White vWilcox, 109 AD3d 1145, 1146 [2013], lv dismissed in part and denied inpart 22 NY3d 1085, 1086 [2014]). It is well settled "that parentage under New Yorklaw derives from biology or adoption" (Debra H., 14 NY3d at 593), and that thedecision of the Court of Appeals in Matter of Alison D. v Virginia M. (77 NY2d651, 656-657 [1991]), "in conjunction with second-parent adoption, creates a bright-linerule that promotes certainty in the wake of domestic breakups otherwise fraught with therisk of 'disruptive . . . battles' . . . over parentage as a prelude tofurther potential combat over custody and visitation" (Debra H., 14 NY3d at593-594). We reiterate that, as the Court of Appeals unequivocally stated, "any change inthe meaning of 'parent' under our law should come by way of legislative enactment ratherthan judicial revamping of precedent" (id. at 596). Finally, we [*2]note that petitioner "failed to sufficiently allege anyextraordinary circumstances to establish her standing to seek custody" as a nonbiological,nonadoptive parent (Matter ofA.F. v K.H., 121 AD3d 683, 684 [2014]). Present—Smith, J.P.,Valentino, Whalen and DeJoseph, JJ.