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EQUITABLE ESTOPPEL DOCTRINE PROPERLY APPLIED TO FIND THAT THE FORMER SAME-SEX DOMESTIC PARTNER HAD STANDING TO SEEK CUSTODY AND VISITATION RE: CHILDREN BORN DURING THE RELATIONSHIP, PRESUMPTION OF LEGITIMACY RE: A CHILD CONCEIVED WHEN THE BIOLOGICAL MOTHER WAS PREVIOUSLY MARRIED WAS REBUTTED (SECOND DEPT).

The Second Department determined that Family Court properly applied the doctrine of equitable estoppel and the presumption of legitimacy was rebutted in this same-sex domestic-partner case. The biological mother (Perperis) and her domestic partner (Chimienti) were together when both children were born and the relationship lasted three years. The older of the two children was conceived when the biological mother was married, but the couple had separated before the baby was born (followed by divorce):

On March 5, 2018, Nicole Perperis, the biological mother of the two subject children, who were born, via artificial insemination, in September 2014 and May 2016, respectively, entered into a consent order of custody and parenting time (hereinafter the consent order) with her former domestic partner, Jennifer Chimienti. Pursuant to the consent order, the parties agreed to share joint custody of the children, with physical custody and final decision-making authority to Perperis. The consent order also set forth a parenting time schedule for Chimienti. The parties entered into the consent order, forgoing a hearing on the best interests of the children as to custody and parental access, upon the determination of the Family Court in an order … (hereinafter the September 2017 order), made after a hearing at which Chimienti’s standing to seek custody or visitation was contested, that Chimienti established standing, via equitable estoppel, to seek custody of or visitation with the children. …… .[W]e agree with the Family Court that … the appropriate analysis to decide whether Chimienti had standing to seek custody of and visitation with the children is to apply an equitable estoppel analysis. …

… .[W]e agree with the Family Court’s determination that, with respect to the older child, the application of an equitable estoppel analysis is not precluded by a legal presumption that the older child, who was born when Perperis was still married to her former wife, is the child of the former wife. We agree with the court’s determination that the marital presumption of legitimacy that typically applies to children born during a marriage (see Domestic Relations Law § 24[1]; Family Ct Act § 417) was rebutted by clear and convincing evidence … . Matter of Chimienti v Perperis, 2019 NY Slip Op 02866, Second Dept 4-17-19

 

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