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DEFINITION OF ‘PARENT’ IS THE SAME FOR PARENTAL ACCESS AND CUSTODY; JUDICIAL ESTOPPEL AND COLLATERAL ESTOPPEL DOCTRINES PRECLUDED SUPREME COURT’S FINDING THAT FATHER DID NOT HAVE STANDING IN THE CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the doctrines of judicial estoppel and collateral estoppel precluded Family Court from finding father did not have standing to seek custody of a child. Father had previously been deemed a “parent” in the context of parental access. The definition of “parent” is the same in the context of custody:

In the prior appeal, this Court expressly stated that the father had standing to proceed as Isabella’s parent under Domestic Relations Law § 70 based on the doctrine of judicial estoppel … . As the term “parent” has the same definition under Domestic Relations Law § 70 whether the party is seeking custody or parental access … , it is immaterial that our prior determination did not specifically mention custody when it concluded that the father had standing to seek parental access with Isabella. Since the mother is judicially estopped from arguing that the father is not Isabella’s parent under Domestic Relations Law § 70, the father was free to seek custody under Domestic Relations Law § 70 as Isabella’s “parent with coequal rights” to the mother … . Matter of Paese v Paese, 2019 NY Slip Op 06090, Second Dept 8-7-19

 

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