Friday, May 23, 2008

What exactly does best interest of the child mean?

What exactly does “best interest of the child” really mean?
By Marion T.D. Lewis, Esq.

Like lyrics to a popular rap song, “best interest of the child” is a rhythmic, tuneless, iambic verse dedicated to the nation’s children who many feel we have either failed, or, (more horrifyingly), left behind. Often permeating with an odor of guilt, the words can at once be intuitive, inevitable, self-explanatory, controversial, sobering and censoring. Arguably, no other words are more utilized by the nation’s judiciary and law makers to cut conversations short, justify the sometimes unjustifiable, and change children’s lives--sometimes permanently.
The rule is probably over a century years old. In its genesis, it was applied in child custody disputes[1] but today, the rule is applied in all proceedings involving the care and welfare of children, including: custody, visitation, support, paternity, and relocation matters, as well as child protective proceedings, and juvenile delinquency proceedings, among others. The Courts consider what is in the best interest of the child after standing and other constitutional criteria are met.
The Best Interest of the Child rule is the standard used across most of the country. The rule probably gained most of its traction after the Baby Boom. It is arguably from the trenches of Post World War II familial warfare that the standard has most evolved. It is no wonder, given the changes in the family structure that came about after more women began working outside the home, and families became increasingly “novel and complex.” Novel and complex familial structures inevitably create novel and complex conflicts which are more and more difficult for the courts to adjudicate. Further, as divorce rates skyrocket, the family itself often seems in danger of imploding. Many parents seem ill-equipped to handle even the simplest parental responsibilities—including the supervision and control of their children. An aggressive and effective response became critical, if for no other reason, to assure that children, caught in the cross-fire, will not suffer unnecessary harm. The utterance of the phrase, “best interest of the child,” seems to be the perfect antidote. Almost no practitioner can win a dispute after the judge indicates that his ruling comes down to the child’s best interest—even on appeal. Everybody knows that in most cases, the Appellate courts will defer to the trial court’s “discretion.”

In recent years, the rule may have been “gentrified” by Attorney General Janet Reno, when in 2000, she famously ordered machine-gun-toting U.S. marshals into the Florida home of Lazaro and Marisleysis Gonzales, to get a little boy named Elian. Elian, a young Cuban boy rescued off the shores of Florida by fishermen who found him floating on a raft after his mother (his custodial parent) and others had perished in a botched attempt to flee Castro’s Communist regime, was taken from his American relatives and returned to his Cuban father who resides in Cuba. The Attorney General opined that it was in Elian’s “best interest” to allow his father to assume custody of the under-aged boy (even if that meant sending the child back to Cuba) in spite of the fact that, before her unfortunate and untimely demise, Elian’s mother clearly thought that getting him out of Cuba was in his best interest. The colliding viewpoints on what was best for Elian demonstrates the troubling elasticity of the rule, its application, and the mechanisms used to arrive at not only what is in the child’s interest, but what is in the child’s best interest. For, was it really in Elian’s best interest to grow up in a Communist country simply because his biological father lived there?

Since Elian, the rule has become a saving catch phrase, evoked whenever the courts, law-makers, educators and others, are in doubt as to what to do with the nation’s children, or, when they need the easiest way out of a tough situation. Not all legal analysts understand what the rule means. In fact it is questionable whether anyone really can determine the exact parameters of its nebulous reach, or can explain for sure what elements must be put together to achieve synthesis so as to determine what truly is best for a child.
The rule seems more a creature of judicial construction than it is an act of the Legislature. In fact, the legislature’s failure to articulate what exactly “best interest of the child” means may not have been purely accidental. It was probably much easier to leave the task to the courts to craft a definition, and to enforce its meaning. And many judges have struggled under the weight of the responsibility. There is no question that context matters. How a court analyzes what is in the child’s best interest may come down to the nature of the proceeding, or which part of the country the case takes place. There are analysts who feel that the term, if it ever had meaning, has lost most of it through misuse, abuse and misinterpretation by many judges. So maligned is the rule by some, that hearing the utterance “it is in the best interest of the child” might annoy, irritate or even nauseate in a similar manner that impudent adolescents who are engaged in cacophonous revelry in a subway car during rush hour might annoy adult straphangers who can barely hear their I-pods above the din.

The lack of a clear definition notwithstanding, no one has yet come up with a better standard or idea. And it is unlikely that anyone will anytime soon. Thus, for now, like it or not, this is the standard used and it’s advisable that everyone accepts it, and make the best of it. That is not to say that all parties should follow along blindly without challenge, questioning or second-guessing. Debate and advocacy will always be crucial especially when five little words yield so much power over the fate of a child. Just because someone utters “best interest of the child,” for example—even if that person is the most learned judge with the utmost discretion—does not necessarily mean that said individual has carefully weighed all facts and has come to the right conclusion for that particular child under those particular circumstances at that particular time. Judges are fallible and can be motivated by other factors having little or nothing to do with the child’s best interest. In retrospect, the Elian Gonzales case could be instructive. Sometimes, the best thing for the child might be that which is counter-intuitive.

[1] Chapsky v. Wood, 26 Kan. 650 (1881) which opined that the fact that a father who had been absent for the first few years of the child’s life was well to do, and shared a biological link to the child, did not mean custody to him was automatic. Instead, the court should look to the child’s “best interest.”

Tuesday, May 6, 2008

Does the best interest of the child doctrine trump GATS agreements?

Copyright New York Law Journal and Marion TD Lewis. ALL RIGHTS RESERVED.

The Unlawful Internet Gambling Enforcement Act: a collision with the World Trade Organization, the Constitution, and the offshore Internet gambling practices of a tiny Caribbean nation (ORIGINALLY PUBLISHED IN THE NEW YORK LAW JOURNAL.)

In recent years, the “interest of children” or the “best interest of the child” rule was subtly used to flout the findings of the World Trade Organization (“WTO”) and the General Agreement on Trade in Services (“GATS”). At issue is a trade conflict between the United States and the tiny Caribbean nation of Antigua concerning the enactment of the Unlawful Internet Gambling Enforcement Act (“UIGEA”) and its impact on the island’s internet gambling services industry. Antigua appealed to the WTO, arguing that the UIGEA amounts to unfair trade practices, and that by enacting the legislation, the United States has failed to honor its GATS commitments. The United States’ position is that internet gambling harms under-aged children, among other evils, and for this reason the U.S. is under no obligation to honor its GATS commitments. The WTO sided with Antigua and found that the United States is guilty of trade discrimination. It is the collision of the United States with the WTO, the constitutional implications, and the economic consequences for the island nation that is the focus of this article.

Morality at the helm of a David vs. Goliath trade dispute
In 2003, the World Trade Organization was called in to settle a trade dispute between the United States and the Caribbean Nation of Antigua. Essentially what was at issue was whether the Federal Government could forbid American citizens from gambling in Antigua’s offshore casinos. Citing the Wire Act, Travel Act and Anti-Gambling Business Act,
[1] the Federal Government determined that permitting internet gambling casinos to remain active in Antigua would violate the criminal statutes in the United States “as prohibiting the interstate transmission of bets and wagers.” Further, the Justice Department determined that, from a moral perspective, internet casinos threatened the public order of the United States by encouraging underage gambling, among other evils.
The problem with this scenario, is, that while seeking to ban online gambling in Antigua, the United States allows gambling of various genres within its borders. On appeal, the WTO determined that because the United States allows gambling within its borders, the moral exception argument was unpersuasive. Rather, the WTO found that the United States had improperly discriminated against its trading cohorts by enacting legislation which asphyxiated the non-domestic internet gambling industry while allowing domestic providers to provide similar gambling services.
Antigua’s appeal to the WTO was on the premise that the actions of the United States had little to do with morality since gambling in various forms is allowed in the United States and more to do with “unfair trade practices.” In other words, the ban is about revenues and not about the virtue of underage children.

Antigua’s sling shot
Before David pulled out his sling and Goliath put up his shield, e-commerce arrived on the pristine shores of Antigua in the form of over 100 internet gambling casinos. For the former British colony (the country is a “constitutional monarchy with a British-style parliamentary system of government”), the internet gambling industry was an attempt to develop a new sector in its economy—financial services—and move away from its total reliance on tourism for economic survival.
The internet gaming industry accounts for more than $80 billion dollars in annual revenues worldwide. Antigua enjoyed a small portion of that in the form of registration fees and other regulatory fees and this trickled down into the country’s GDP, helping the government to provide for the health, education and other core needs of its citizens. Since the enactment of the UIGEA there are about 30 online casinos left on the island and a corresponding precipitous drop in their GDP. Antigua cried foul.

History repeats itself
This dispute, between humorously mismatched trading adversaries, is not unlike that which the Johnson Act, 15 U.S.C. §§ 1171-1178 (subsequently amended in 1962, 1992, and 1996) created. Under the Johnson scenario, “foreign flag ships were permitted to offer gambling on the high seas while American vessels were forbidden to do so.” Congress equalized the playing field by amending the Johnson Act. “The amendments sought to put an end to discriminatory treatment of the United States flag vessels under federal law.”
The Antigua/U.S. altercation is the opposite side of the same Johnson coin. The ban on internet gambling puts foreign nations at a clear competitive disadvantage in the lucrative online gambling industry while giving American gaming businesses a clear advantage. However, instead of conceding the issue, the United States expressed that it would simply withdraw the United States’ commitment under the GATS rubric to certain trade services, like gaming. This sets a troubling precedent according to some analysts. In America’s defense, however, the United States has never really agreed to be bound by the WTO’s decisions, especially if such decisions are “inconsistent with any law of the United States.”

The Constitution as Ground Zero
The UIGEA makes it a federal crime for banks and credit card companies to pay gambling debts incurred online.
[4] Is this law constitutional? Even assuming, arguendo, that the law passes scrutiny, is it a “good” law?
The constitution obviously gives Congress the power to regulate interstate, intrastate and foreign commerce.
[5] The Constitution also empowers Congress to enact any laws which are necessary and proper for “carrying into execution…all other powers vested by this Constitution in the government of the United States.”[6] The Constitution also makes clear that Federal law is the supreme law of the land and that where there is a conflict with state law, that federal law will preempt state law.
It is true that the federal government has always had an uneasy relationship with gambling. The case law and statues are replete with cases indicating the Federal government’s disdain for the industry, describing it at various junctures as, among other things, “evil” “ill” “illicit” “criminal” and “immoral.”
The Federal government was well within its right to enact the UIGEA under the Commerce Clause, the Necessary and Proper Clause and the Supremacy Clause. This fact cannot be argued. But the United States employs a “federalist structure of government,” comprised of individual states, which are considered “sovereign,” and it has been widely held that the Federal government is forbidden to commandeer the states.
The Supreme Court has indicated “‘that when a State’s exercise of its police power is challenged under the Supremacy Clause, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Acts unless that was the clear and manifest purpose of Congress.’”
[8] It has historically been the province of the state to provide for the core needs of its citizens. “States have long possessed primary responsibility in our federal system to protect the health, welfare, safety, and morals of our citizens.”[9] The core needs include family matters and moral issues such as gambling. It has been held that “gambling is not a field subject to exclusive federal control, but rather federal law in this field respects both system of dual sovereignty and important regulatory interests of the states.”[10]
The UIGEA arguably infringes on the states’ sovereignty and places the states in the glare of the global spotlight, when, had Congress not acted, this might not have been so. By enacting the UIGEA, the federal government essentially federalized an issue which should have remained the province of each state. In doing so, Congress has made it exceptionally difficult for the “United States” to make a convincing argument before the WTO’s global trade forum that, pursuant to the Tenth Amendment, the “federalist structure” of its government forbids the federal government from obligating the states to give full faith and credit to federal GATS commitments that include gambling. Some argue that this legislation puts the federal government in a commandeering position. There is some sense that with enough international pressure Congress will be forced to repeal or amend the UIGEA. If that happens, states which may have outlawed online gambling within their borders may be forced to legalize it. Conversely, states which would have been inclined to allow online gambling, pursuant to its police powers, are now prevented from allowing its citizens to gamble online while the UIGEA remains good law.
[11] It could hardly have been the intent of Congress to place itself or the states in this “constitutional purgatory” when it enacted the UIGEA.
Ironically, the Federal government can probably do little to stop consenting adults from gambling in the privacy of their homes on their computers if that is what they are bent on doing—perhaps that is why the UIGEA does not expressly outlaw online gambling, per se, but, rather, “chokes off the flow of payment for gambling transactions.” There is some merit to the argument that, from a constitutional perspective, the Federal government should not even want to impose on individual freedoms to this extent.
This artful legislation amounts to “Prohibition.” It unreasonably imposes on privacy rights of citizens. It is certainly true that some individuals abuse certain privileges to the point of compulsion (this includes their use of alcohol and certain drugs, and their sexual behavior, among other things). But attempting to limit the freedom of all to save the errant few (including the minority of under-aged children who might use their parents’ credits cards and lie about their age to gamble online) seems futile, and may even be “irrational” on the part of the Federal government.
Further, if morality and child safety are the impetuses, then there seems to be no rational basis for allowing state lotteries, gambling on U.S. flag cruise ships, Indian gaming, state casinos and online horse betting in the United States, while banning online betting in offshore casinos.
[12] Further, if morality and child safety are the impetuses, might the Federal government not have made better use of its powers under the Necessary and Proper Clause by enacting legislation which holds parents to a higher degree of accountability for the care and supervision of their children—particularly with respect to their internet/computer activities? Naturally, some federal policing of the internet is appropriate. The Children’s Online Privacy Act of 1998 is a Federal law designed to prevent the exploitation of children on the internet. Surely using this law as a paradigm, there are more narrowly tailored means to achieve the Congressional objectives of protecting under-aged youngsters from underage gambling—including mandating the use of “adult zones in cyberspace”[13]—without arbitrarily discriminating against foreign trade cohorts.

The interest of children: sword or shield?
By enacting the UIGEA, the Federal Government arguably used the “vulnerability of children” as a shield against fulfilling obligations made under GATS. One might argue that the “the interest of children” was used as artillery in a trade war to prevent one’s lesser equipped opponents from gaining equal footing. In other words, under the color of morality, and the Constitution, the interest of children was used to put up trade barriers that effectively decreased trading opportunities for lesser developed countries and denied market access to lesser developed and “less favored” nations while giving “favored nations” a clear advantage. Thus, using the concern for underage children to justify a refusal to allow “trade” seems to have turned on the government’s view that, in protecting the interest of children, any action is justifiable—including legislating morality, commandeering the states, discriminating arbitrarily against foreign nations, and jeopardizing the integrity of established multilateral trade systems like the WTO. While the Constitution allows the Federal government to act in this context, it seems non-action might have been more effective in achieving its aims.

Even though Antigua prevailed before the Dispute Settlement Body (“DSB”) of the WTO, the country can do little to enforce the favorable ruling if the United States refuses to be bound by the ruling. Normally if a member country of the WTO refuses to be bound by rulings, the DSB can authorize the member country who obtained a favorable ruling to retaliate against the non-compliant country. But how does a tiny dot on most maps, like Antigua, population 70,000, “retaliate” against a hegemonic behemoth like the United States?
The United States can ignore the WTO’s ruling without consequence, and can arbitrarily crush trading partners like Antigua like a bug. Antigua, after all, is not China. But perhaps restraint should be exercised; and not only because doing otherwise may cause other nations to accuse us of “hegemonic tyranny.” Antigua’s finance minister, Dr. Erol Cort puts it well. He demurs that Antigua is ultimately less concerned with the realities of what the ban does to its GDP and more concerned that the World Trade Organization and its multilateral trade agreements remain a legitimate global trade forum which equalizes nations and provides increased (though not preferential) market access for developing countries as well as favored nations alike, in the interest of all. Further, he asserts that if the aim of the United States is to protect under-age children, there are many ways to accomplish this without resorting to protectionism, trade discrimination and infringement on personal liberties.

Marion T.D. Lewis, a dual citizen of Antigua and the United States, is in private practice in New York City. Ms. Lewis expresses thanks to Jacqueline Cantwell of the Kings County Law Library for her assistance with research.

[1] See, Travel Act 18 USCS 1952 which prohibits the use of any facility in interstate commerce with intent to promote certain unlawful activity, including any business enterprise involving gambling in violation of state law. See, also The Wire Act 18 USC 1084 which prohibits the use of telephone lines to place bets and wagers in interstate commerce.
[2] See Casino Ventures v. Stewart 183 F.3d 307 (1999)
[3] See Section 3512 of the Uruguay Round Agreements; See, also, Corus v. Dept. of Commerce, CA.Fed. 2005, 395 F. 3d 1343
[4] See The Unlawful Internet Gambling Enforcement Act of 2006 (Enacted as Title VIII of the Security and Accountability for Every Port Act of 2006 or SAFE port Act. 31 USC § 5363 (§ 802 of the SAFE Act)
[5] See U.S Constitution Article 1 Section 8
[6] See U.S. Constitution Article 1 Section 8
[7] See U.S. Constitution Amendment 10; see also, New York v. U.S. 505 U.S. 144
[8] See Casino Ventures v. Stewart 183 F.3d 307 (1999)
[9] Id.
[10] Id.
[11] The UIGEA allows states to determine whether its citizens can gamble online so long as the activity is restricted to the State’s borders and does not infringe on other states.
[12] See 2000 amendment to the Interstate Horseracing Act of 1978
[13] See Kids and the Internet: Promise and Perils An NCLIS Hearing in Arlington Virginia Nov. 10, 1998

Who or what is a "parent"?

Copyright of the New York Law Journal and Marion TD Lewis. ALL RIGHTS RESERVED.

Equitable Paternity: How the New York Court of Appeals’ decision in “Shondel” could grant same sex couples standing in support, custody and visitation (Originally published in the New York Law Journal)

Recently the New York Court of Appeals ruled that a man who had no biological link to a child but who was deceived by his paramour into thinking that he was the father, would be equitably estopped from denying paternity. The Court opined that a man who "acted like a father would be treated like a father,” to protect the child’s best interest.[1] The impact this ruling could have on same sex couples and the children of their unions is potentially significant.
The Respondent in Shondel is a heterosexual resident of New York who had consensual sexual relations with a woman while on a visit to Guyana. Upon his return to New York he was told by his paramour that she was pregnant with his child. Though the parties were never married or cohabited nor had evinced a desire to become a family unit, the Respondent accepted paternity without challenge. He supported the child from birth, never petitioning the Court for a genetic marker test or obtaining an order of filiation.

After several years the relationship between mother and father soured. A child support proceeding ensued. The mother demanded retroactive child support. The father counter-sued for visitation. A paternity test was ordered. It turned out the “father” and child did not share the same DNA. He was not the biological father. The man then moved to terminate the order of support. He argued that because he had been deceived and was not the biological father of the child, and because he had no intention of adopting the child, that he should not be liable for child support—even though he had “acted like the father of the child.”

The Court of Appeals disagreed, affirming the opinion of the New York Family Court which had ruled that the Respondent was the father by estoppel. The Court found that the Respondent is “equitably estopped from denying paternity”
[2] when he had held himself out as being the father of the child and had been providing support to the child even prior to the child’s birth. The Court stated, "[T]he potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given."
There is a whole cocktail of case law on the subject of paternity, child support and equitable estoppel. Same sex couples have tried to use equitable estoppel arguments to challenge custody or visitation orders without much success. “Current state law among the Second, Third and Fourth Departments, at least as far as custody and visitation, is that there is no doctrine of equitable estoppel that is available to confer standing on a ‘legal stranger’ to seek custody or visitation.”
[3] In matter of C.M. stands for the notion that a legal stranger is anyone who is not a “parent, sibling or grandparent.”

Whether an individual in a same sex relationship who is not the biological or adoptive parent of a child would have standing to petition the Court for or in objection to an order of support after the Court of Appeals decision in Matter of Shondel, is the question at bar. Are same-sex couples (whether by domestic partnerships, civil unions or marriages) “parents” simply by virtue of their intent to be a “family unit” and their “holding themselves out as parents?”

Prior to the ruling in Shondel, in order for a gay or lesbian partner to be considered a “parent” of a child conceived during the time their family unit was intact, he or she must be the biological parent, or must have legally adopted the child. Otherwise, the only legal status said individual would be accorded in the child’s life is probably that of “legal stranger.”
[4] “The Court of Appeals rejected the argument that the definition of ‘parent’ under the New York statutes included de facto parenthood or parent-like relationships even though the domestic partner involved in the case had ‘acted and been treated like a parent to the subject child.’” The Court stated that “the doctrine of equitable estoppel no longer exists to confer standing to non-parents to seek custody or visitation.”

A parent’s right to care for, support and control his or her “children” has been deemed fundamental.
[5] The C.M. Court ruled that “the doctrine of parens patraie [] cannot trump a legal parent’s constitutional right [and obligation] to the care and custody for his or her own children.” Further, the C.M. Court, endorsing the United States Supreme Court’s narrow definition of “parents” for purposes of custody, emphasized the Court’s view that a parent has a “protected liberty interest under the 14th Amendment of the United States Constitution to the ‘care custody and control of his or her own children.’”[6] This ruling impliedly imposes a corresponding duty on “parents” to be solely responsible for the [financial] care of their own children. The challenge becomes determining who is a parent according to the state and federal laws and who would and is liable for support given the ever changing familial structures and the “novel and complex familial relationships”[7] that continue to abound. For, it is well settled that “only a parent can be charged with the support of a child.”[8]

In New York, while same sex couples can adopt children together,
[9] they cannot marry—thus form the basis of a legally recognizable “social institution that best forges a linkage between sex, procreation and child rearing.”[10] Furthermore, same sex couples are not considered legal “spouses” in New York unless they were married in a jurisdiction to which New York extends comity.[11] Traditionally when these relationships (whether domestic partnerships, civil unions or marriages) dissolve one of the partners would be left holding the short end of the stick as far as the children are concerned—if the party without a biological link had not adopted the child(ren). That person would not be viewed as a legal “parent.”

The Court of Appeals ruling in Shondel serves to stir things up a bit. The Court seems to push the definition of the word “parent” almost to its breaking point to include individuals who not only have no biological or adoptive link to a child, but merely “acted like a [parent]” towards the child. Who is a legal parent? To whom do all the appurtenant rights, duties and obligations of parentage extend? The Court seemed to say that a parent is anyone who “acted like a parent,” irrespective of the circumstances of that person’s actions. The Respondent in Shondel, for instance, had no biological link to the child. He never adopted the child. He was never married to or cohabited with the child and the child’s mother. Therefore there was no “presumption of paternity.” The parties had never evinced any intent to be a “family unit.” Rather, the Respondent wrongly assumed, based on the misrepresentation of his paramour, that he was the child’s biological father. He “acted like the child’s father” by, among other things, allowing the child to carry his last name; signing papers to allow the child to obtain immigration documents; buying the child gifts; holding the child out to his community as his offspring; and allowing the child to call him “daddy.” The Court of appeals found that his conduct prevented him from denying paternity even though he was biologically unrelated to the child.

The fact that the parties in Shondel were never married, had never cohabited, nor had they ever engaged in an exclusive familial relationship, is relevant. Traditionally, equitable estoppel operates to protect a child’s best interest, particularly where the parties were married and the father’s paternity (or lack of it) would disrupt the child’s life, care and welfare. This is not only because of the presumption of paternity that exists in marriage, but also because society has traditionally “regulated heterosexual behavior to bring order to the resulting procreation and ensure a stable family structure for rearing, education and socialization of children.”

Same sex relationships are probably not viewed as the most “stable family structure” that exists. Perhaps that is the reason same sex couples cannot marry in most states in the Union. In New York, the definition of marriage in the Domestic Relation Laws “expresses an important, long recognized public policy supporting, among other things, procreation, child welfare and social stability.”
[13] Until quite recently, the New York courts did not perceive same sex couples as fit to adopt, and care for children—whether financially or otherwise—partly because of this appearance of “instability.”

In most countries around the world, except for Canada, Netherlands, Spain, Belgium and the Caribbean island of Antigua to name a few, the right of gay and lesbian couples to legally marry has been proscribed.
[14] Thus same sex couples have not traditionally been held to a standard of “bringing order to the resulting procreation and ensure a stable family structure for rearing, education and socialization of children.” While the United States Supreme Court “recognizes traditional, heterosexual marriage as a fundamental right pursuant to both equal protection and substantive due process liberty and privacy doctrines, ([and] New York apparently recognizes a parallel right”)[15] sexual orientation and the right of same sex couples to marry is not subject to the stricter equal protection analysis.[16] Same sex couples enjoy no fundamental liberty to any of the statutory benefits traditionally incidental to marriage—including, arguably, “rearing, educating, socializing, procreating, and caring for the welfare of children.” But times are changing.

In contrast to most states and Nations, the Commonwealth of Massachusetts extended the legal right to marry to same sex couples residing in the State with all the corresponding legal rights, duties and obligations thereto, in 2004.
[17] In the landmark decision, the court considered the constitutional question:

Whether the Commonwealth may use its formidable regulatory authority to bar same sex couples form civil marriage…. [Citations omitted] the court concluded it may not do so, determining that the Commonwealth had failed to articulate a rational basis for denying civil marriage to same sex couples. The court stated that the Massachusetts Constitution ‘affirms the dignity and equality of all individuals’ and ‘forbids the creation of second-class citizens’. …. The court concluded that in ‘limiting the protections, benefits and obligations of civil marriage to opposite sex couples,’ the marriage license law ‘violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

Assuming arguendo that the Commonwealth was correct in its constitutional analysis—one may argue that the Massachusetts case does not serve as a particularly shining example of the stability of same sex unions and that the decision does not augur well for the future of same-sex marriages in the Union given the fast and furious dissolution of that groundbreaking union—did the New York Court of Appeals broaden the definition of “parent” enough to include same sex domestic partners, couples in a civil unions and same sex spouses who hold themselves out as “parents” though they may lack a biological link to or adoption papers for a child? Did the ruling in Shondel operate to turn what was once a “legal stranger” into an “equitable parent”? The petitioners in Goodridge had a minor daughter who will be protected by the child support laws of the Commonwealth without doubt. Both parties would probably have standing to petition the Court of Massachusetts for custody and visitation even if one party shares no biological link and did not legally adopt the child. Neither party could successfully argue that the other is a “legal stranger.” Both parties would probably be liable for child support by estoppel.

The Shondel Court has opened the door for same sex couples in New York to gain standing in child support, visitation and custody cases without the benefit of biology or adoption. It would seem disingenuous, if not unconstitutional, for the Court to now say that only heterosexuals can “act like parents and will be treated like parents.” The Court could not use the argument that its ruling is based on the fact that heterosexual marriages or relationships are “stable” and would “bring order to the resulting procreation and ensure a stable family structure for rearing, education and socialization of children.” There was nothing “stable” about the relationship between the parties in Shondel. The Respondent in Shondel did not have a relationship with the child’s mother. They were “legal strangers.” They were never married. They never cohabited. They never evinced an intention to become a “family unit.” They never mentioned wanting to “ensure a stable family structure” so that they could “rear, educate and socialize the child.” In fact, once he learned that he had been duped, the Respondent wanted nothing to do with the mother or child. He argued that it was not his duty to support the child. He had no desire to foster a parent/child relationship with an issue who bore no biological relationship to him. Yet, with no filiation, the court issued an order of support. The Court opined that its interest lay in protecting the child’s psyche and her “best interest,” suggesting that at least for now, similarly situated men will be prejudiced if they do not challenge paternity and demand a genetic marker test from the start.

Recently, the Onondaga Supreme court granted vacatur of a default order of filiation and directed a paternity test for an individual who, while incarcerated, had been ordered to pay child support. An order of filiation had also been issued by default. The petitioner challenged the orders on the grounds that there had been convincing evidence on the record that the mother had had sexual relations with another man at the time she conceived the child. Moreover, the petitioner had never had a “parent/child relationship” with the subject child. In vacating the order of filiation, the Court of Appeals stated, “the Court finds that equitable estoppel will not apply since it is in the best interest of the child to go forward with testing to determine if the petitioner is the child’s father in view of the child’s age and the fact that the petitioner has no relationship with her.”
[18] That Court clearly found the existence of a biological link to be of paramount importance in its analysis of whether an individual should be ordered to pay child support. The case is distinguishable from Shondel, however, in that the Respondent in Shondel had clearly “acted like a father,” whereas the Respondent in the case at bar clearly had not.

As the definition of family continues to evolve, same sex couples will likely obtain the right to marry in most states eventually. But until then, Shondel will arguably protect children of same sex couples in New York who were neither adopted by nor share a biological link with, a partner who subsequently leaves the familial relationship. That individual would now seem to have a legal duty pursuant to Shondel to support any child to whom he or she “acted like a father [or mother].” The ruling will also empower same-sex couples who seek standing to challenge custody and visitation orders. Such individuals may argue that equity demands that the pendulum should swing both ways. If same sex domestic partners are “parents” by estoppel where child support is concerned, then they are “parents” for purposes of visitation and custody.

Shondel stands for the principle that a “parent” does not necessarily have to have a biological link to the child in order to be liable for the support of the child. Nor does a “parent” have to have adopted the child. While there does not appear to be any magic ingredients, the Court seems to say that the definition of a parent will turn on the actions of the adults and the expectations of the child. A parent is essentially a person who holds him [or herself] out as having a parent/child relationship with that child; a person who establishes ties with the child; a person who knowingly or unknowingly assumes financial and emotional responsibility for a child with whom they may or may not share a biological link, or may or may not have legally adopted.

Shondel will force adults to take the role of parenting seriously. The Court will protect the child’s best interest no matter the consequences to adults who may find themselves involuntarily caught up in familial quagmires. The Court of Appeals suggests that it is emphatically not in the child’s best interest to have adults form bonds with each other, bring children into the union (by what ever means), then proceed to treat children with the same fickleness with which some adults approach their adult relationships. Marriages, whether heterosexual or same-sex can easily be broken. The Goodridges and Britney Spears make that abundantly clear. However, the New York Court of Appeals draws the line quite firmly when it comes to children. Thus, the Respondent in Shondel and Brad Pitt (and those inclined to emulate them whether heterosexual or same sex) should take note. When one purports to “act like a parent” even without the benefit of marriage, by, among other ways, giving a child one’s last name, buying gifts for the child, holding oneself out to the community as the child’s parent, allowing a child to call one “mommy” or “daddy,” one will be “treated like a parent” in the eyes of the law. Shondel is clear. A “parental” bond with a child, once formed, will be given full force, effect and credit. An adult cannot simply withdraw from the role of “parent” in a child’s life just because there is no biological link, and just because the adult relationship has terminated. Rather, the focus will be on protecting the rights, interests, lives and welfare of children who come to depend on and expect the continuation of that relationship and financial support. In same sex relationships, as in heterosexual relationships, Shondel will likely have far-reaching implications.

Copyright Marion T.D. Lewis, Esq., 2006All rights reserved

Marion T.D. Lewis is a graduate of New York Law School. She is a matrimonial and family law attorney and a former New York Elementary School teaching fellow. Email Ms. Lewis at
[1] In Matter of Shondel J. v. Mark D., 40, 2006 N.Y. LEXIS 1837.
[2] See Fam. Ct. Act sec. 18[a] and 532 [a].
[3] In Matter of C.M. v. C.H. 2004 NY Slip Op 24414; 6 Misc. 3d 361; 789 N.Y.S. 2d 393; 2004 NY Misc. Lexis 1916 (2004).
[4] See Alison D. v. Virginia M., 77 NY 2d 651, 572 NE 2d 27, 569 NY 2d 586 (1991)
[5] Troxel v. Granville (530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed 2d 49 [2000].) See, also In Matter of C.M. supra.
[6] Troxel v. Granville (530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed 2d 49 [2000].)
[7] See e.g. Thomas S. v. Robin Y., 209 AD 2d 298.
[8] In matter of Melissa S. v. Freder, 8 AD 3d 738, 777 NYS 2d 774, 2004 NY App Div. 7556.
[9] See, In re Adoption of Carolyn B., 6 AD 3d 67, 774 N.Y.S. 2d 227 (4th Dept. 2004).
[10] See, In re Adoption of Carolyn; See also, Hernandez v. Robles, 2005 NY Slip Op 9436.
[11] Derek B. Dorn, Same Sex Marriage Under New York Law, NYSBTA Journal, Jan. 2006, at 42.
[12] Hernandez Supra.
[13] Id. See, also, DRL
[14] See, e.g., Derek B. Dorn, Same Sex Marriage Under New York Law, NYSBTA Journal, Jan. 2006, at 42.
[15] Hernandez
[16] Id.
[17] See, Goodridge v. Department of Pub. Health, 440 Mass. 309, 798 NE 2d 941 (2003)(Goodridge).
[18] In Matter of I.T. v. C.R.