Dawn M. v. Michael M.

Supreme Court of New York · Family Law

Family LawChild CustodyVisitationStandingBest Interests of the Childtri-custodyshared legal custodyvisitation

Facts

Plaintiff and defendant were married, and later plaintiff, defendant, and Audria agreed before conception that they would have and raise a child together as a family. Audria conceived J.M. with defendant, and after his birth plaintiff participated in his care from pregnancy onward, lived with him, shared maternal duties, and was presented to him as one of his two mothers. J.M. called both Audria and plaintiff "mommy," and the court found that plaintiff acted as a joint mother throughout his life. After plaintiff commenced divorce proceedings, defendant stopped recognizing plaintiff as J.M.'s parent, although plaintiff continued living with Audria and J.M. and saw him daily.

Issue

Whether a non-biological, non-adoptive parent who was part of a preconception agreement to raise a child together and who has acted as the child's mother may be awarded shared legal tri-custody and court-ordered visitation with the child. The court also considered whether defendant could oppose that relief after helping create and foster the parent-child bond.

Rule

Under Brooke S.B., a non-biological, non-adoptive parent has standing to seek custody and visitation where clear and convincing evidence shows the parties agreed to conceive a child and raise the child together. Once standing exists, custody and visitation are determined by the child's best interests, and shared legal custody may be ordered where the adults can cooperate in making major decisions affecting the child's health, education, and welfare. Where a party has fostered and orchestrated the parental relationship, reason and justice may estop that party from denying custody or visitation when doing so would harm the child.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Rochester, Nina Alvarez and her husband, Owen Barrett, agreed with their close friend Leah Costa that Leah would conceive a child with Owen and that all three would raise the child together. For seven years, Nina attended medical appointments, shared school and doctor responsibilities, and the child called Nina and Leah both "mom." After Nina and Owen separated, Owen argued Nina had no right even to seek custody because she was neither a biological nor adoptive parent.

How should the court rule on Nina's ability to bring the custody and visitation petition?

Explanation. The majority treated standing as a threshold issue governed by the rule that a non-biological, non-adoptive parent has standing when clear and convincing evidence shows the parties agreed to conceive a child and raise the child together. Best interests are considered only after standing is established. Neither biology nor adoption is required where that agreement is proven.