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GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT).

The Second Department determined the paternal grandparents had automatic standing to seek visitation upon father’s death. The court further determined visitation was in the best interests of the children, despite the animosity of mother (not caused by the grandparents):

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry … . First, it must find that the grandparent has standing, based on the death of a parent or equitable circumstances … . “Where either parent of the grandchild has died, the grandparents have an absolute right to standing” … . Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine if visitation is in the best interests of the child … . …

Animosity alone is insufficient to deny visitation … .Here, the estrangement between the paternal grandparents and the children resulted from the animosity between the mother and the paternal grandparents, and the record supported the forensic evaluator’s determination that the paternal grandparents’ conduct was not the cause of the animosity … . Matter of Mastronardi v Milano-Granito, 2018 NY Slip Op 01923, Second Dept 3-21-18

FAMILY LAW (GRANDPARENTS, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/DOMESTIC RELATIONS LAW (VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/STANDING (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))

SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement met the statutory requirement of the adoption statute. The petitioner therefore had standing to adopt without her spouse and her petition should not have been dismissed:

Domestic Relations Law § 110 dictates who has standing to adopt, and should be strictly construed in harmony with the legislative purpose that adoption is a means of securing the best possible home for a child … . As relevant here, an “adult married person who is living separate and apart from his or her spouse . . . pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded . . . may adopt another person” without his or her spouse … .

A separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance … . However, “[t]he agreement is simply intended as evidence of the authenticity and reality of the separation'” … . Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally . . . may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) … .

Here, the separation agreement evidences the parties’ agreement to live separate and apart. The agreement is in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded … . Therefore, it satisfies the statutory requirement of the adoption statute with respect to a separation agreement … . Matter of Jason (Sonia O.), 2018 NY Slip Op 01922, Second Dept 3-21-18

FAMILY LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/ADOPTION (SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/SEPARATION AGREEMENT (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/DOMESTIC RELATIONS LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Department of Social Services made reasonable efforts to prevent or eliminate the need for the temporary removal of the children while the neglect petition is pending. The court noted that Family Court did not have the power to find a foster home for the family’s cat:

… [T]he court lacked the authority to order it to find a foster home for respondents’ cat, and we therefore further modify the order accordingly. “Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … , or by the New York Constitution (see NY Const, art VI, § 13). Inasmuch as animals are property … , and Family Court does not have jurisdiction over matters concerning personal property, we conclude that the court exceeded its authority in directing petitioner to find foster care for respondents’ cat. Matter of Ruth H. (Marie H.), 2018 NY Slip Op 01840, Fourth Dept 3-16-18

FAMILY LAW (PETS, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/FOSTER CARE (FAMILY LAW, PETS, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/PETS (FAMILY LAW, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))

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PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child, Tabitha, should not have been removed from her foster home and placed with her maternal grandmother:

… T]he determination of the Family Court that it was in Tabitha’s best interests to be removed from her foster home, where she had resided for over four years, and to be placed in the kinship foster home of the maternal grandmother lacks the requisite sound and substantial basis in the record … . In determining the best interests of the child, “[t]here is no presumption that the children’s best interests will be better served by a return to a family member” … . Indeed, ” Social Services Law § 383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody'”… . “Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart” … . Here, the court gave inappropriate weight to this preference, as Tabitha and her brother only shared a household with the maternal grandmother for the first five months of Tabitha’s life (see id.). Moreover, the record reveals that Tabitha has closely bonded with her foster family and remains healthy, happy, and well-provided for … . Therefore, the court erred in determining that it was in Tabitha’s best interests to be moved to the kinship foster home of the maternal grandmother rather than remain with her foster mother for the purpose of adoption, which the record shows is the intent of the foster mother … . Matter of Tabitha T. S. M. (Tracee L. M.–Candace E.), 2018 NY Slip Op 01468, Second Dept 3-7-18

FAMILY LAW (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/CUSTODY (FAMILY LAW, PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/FOSTER CARE  (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))

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ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT).

The First Department determined plaintiff mother was entitled to the infant plaintiff’s foster care records in connection with her claim that SCO Family Services negligently certified the individual defendant as a foster parent, and failed to properly supervise the foster home:

Pursuant to Social Services Law § 372(1), SCO was required to maintain records while the children were in foster care. Those records are confidential, but are discoverable pursuant to article 31 of the CPLR (Social Services Law § 372[3]). The statutory confidentiality requirement is intended to protect the privacy of children in foster care and their natural parents … , not to prevent former foster children from obtaining access to their own records.

When a former foster child “seeks her own records, so she can further her own suit against the defendant custodian of those records, who would otherwise have unequal access to them”… , she is “presumptively entitled to her own records” and “only a powerfully compelling showing would justify the court in potentially restricting” her access to the records … .

In this case, the court properly undertook in camera review of the foster care records to ensure that no private information of nonparties would be disclosed. However, the court erred in determining that the identities of ACS caseworkers, mental health professionals and other professionals should be redacted. Plaintiffs sought access to those witnesses to determine whether they had any relevant knowledge, and SCO did not articulate any privacy interests of those professionals that would warrant redacting their names from the foster care records. K.B. v SCO Family of Serv., 2018 NY Slip Op 01400, Second Dept 3-1-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/DISCOVERY (FAMILY LAW, FOSTER CARE,  ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/FOSTER CARE (DISCOVERY, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/NEGLIGENCE (DISCOVERY, FOSTER CARE RECORDS, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))

DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that the court erred in awarding custody to the father without an evidentiary hearing. Mother had repeatedly promised to return with the children from New Mexico but did not. Although Family Court was justifiably irked by the mother’s behavior, a custody hearing was still required:

We do … agree with the mother that Family Court erred in granting the father’s custody petition without conducting an evidentiary hearing. “[C]ustody determinations should generally be made only after a full and plenary hearing and inquiry”… . A court’s final custody determination must be based on admissible evidence and not on, as relevant here, “information provided at court appearances by persons not under oath”… .

The record reveals that Family Court’s ultimate custody and visitation determination was made only after a few preliminary court appearances in which no witness gave sworn testimony or documentary evidence was received, and there is no indication that Family Court considered the various factors relative to the best interests of the children. While Family Court was justifiably irked at the mother’s actions in frustrating the purpose of the court’s prior orders, such actions, although certainly relevant, are not solely dispositive in this case on the issues of custody and visitation … . Because Family Court “did not possess sufficient information to render an informed determination that was consistent with the children’s best interests”… , the matter must be remitted for a full evidentiary hearing on the father’s custody petition. Matter of Richard T. v Victoria U., 2018 NY Slip Op 01364, Third Dept 3-1-18

FAMILY LAW (CUSTODY, DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT))/CUSTODY (FAMILY LAW, DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT))

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FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW FATHER TO REPRESENT HIMSELF IN THIS CUSTODY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s desire to represent himself in this custody proceeding should have been honored by the court. Family Court had ordered that father be allowed only supervised visitation until he retained counsel:

The father had a statutory right to counsel in these Family Court proceedings… . However, he also had the right to waive counsel and proceed pro se, provided he waived his right to counsel knowingly, intelligently, and voluntarily… . “Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]'” … .

Where a party unequivocally and timely asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary … . “While there is no rigid formula to the court’s inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel” … . The Court of Appeals has stated that the better practice is to ask the party about his or her age, education, occupation, previous exposure to legal procedures, and other relevant factors bearing on a competent, intelligent, and voluntary waiver … .

Here, the father unequivocally and timely asserted his right to represent himself in the Family Court proceedings. The Family Court engaged in a searching inquiry of the father, which revealed that he knowingly, intelligently, and voluntarily waived his right to counsel, and that it was his desire and personal choice to proceed pro se. The court properly warned him of the perils of self-representation, which he acknowledged. The father is a tax attorney, and his relative ignorance of family law did not justify the court’s denial of his request, as mere ignorance of the law is insufficient to deprive one of the right to self-representation … . Matter of Aleman v Lansch, 2018 NY Slip Op 01303, Second Dept, 2-28-18

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW FATHER TO REPRESENT HIMSELF IN THIS CUSTODY PROCEEDING (SECOND DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW FATHER TO REPRESENT HIMSELF IN THIS CUSTODY PROCEEDING (SECOND DEPT))/ATTORNEYS (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW FATHER TO REPRESENT HIMSELF IN THIS CUSTODY PROCEEDING (SECOND DEPT))/PRO SE (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW FATHER TO REPRESENT HIMSELF IN THIS CUSTODY PROCEEDING (SECOND DEPT))

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THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Duffy, determined the automatic orders which preclude the transfer of marital property (“the Property”) when a divorce proceeding is pending cannot be the basis of a contempt order after the judgment of divorce. Here the wife learned the husband had sold a marital asset while the divorce was pending and the court, based upon the automatic orders, after judgment, found the husband in contempt and ordered payment of a purge amount to the wife under threat of incarceration:

At the time the defendant sold the Property, both Domestic Relations Law § 236(B)(2)(b) and 22 NYCRR 202.16-a were in full force and effect. As is relevant to this appeal, each provision, with language that virtually mirrors the other, precludes either of the parties in a matrimonial action from transferring or in any way disposing of marital assets such as the Property without the written consent of the other party or order of the court, except under certain circumstances not applicable to this case … . The automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint … . * * *

Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time … . Here, after the judgment of divorce was entered, the automatic orders ceased to exist for the purposes of enforcement …  given that the judgment of divorce was the final determination of the action and, along with legally ending the marriage of the parties, disposed of all outstanding issues relating to the division of the parties’ property, the award of maintenance, child custody, and other marital issues … . * * *

… [T]he unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce does not render this plaintiff without available remedies. For example, vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the Property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the plaintiff could have sought … . Spencer v Spencer, 2018 NY Slip Op 01348, Second Dept 2-28-18

FAMILY LAW (THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT))/DOMESTIC RELATIONS LAW  (THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT))/MARITAL PROPERTY THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT))/DIVORCE (THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT))/CONTEMPT (FAMILY LAW, DIVORCE, THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT))/AUTOMATIC ORDERS (FAMILY LAW, DIVORCE, MARITAL PROPERTY, THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT))

LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT).

The Second Department, reversing Family Court, determined the legal guardian’s petition to adopt the child should not have been denied solely based upon petitioner’s criminal history. The criminal history was 20 years old and petitioner had been the child’s legal guardian for five years:

A court must determine whether a proposed adoption is in the best interests of the child … . The court should consider all the relevant factors … . “[P]erfection is not demanded of adoptive parents” … , and “even an unacceptable record of misconduct by adoptive parents may be mitigated by evidence that the proposed adoptive child is healthy and happy and considers petitioners to be his [or her] parents” … .

Here, the Family Court erred in determining that the adoption was not in the child’s best interests based solely on the petitioner’s criminal history. The court should have received evidence and considered other factors relevant to the issue. This is particularly true since the petitioner had been appointed the child’s permanent guardian and had served in that role for over five years, which was most of the child’s life, and all of the petitioner’s convictions occurred more than 20 years before he commenced this proceeding … . Matter of Isabella (Charles O.), 2018 NY Slip Op 01309, Second Dept 2-28-18

FAMILY LAW (ADOPTION, LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT))/ADOPTION ( LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT))

PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT).

The Second Department, reversing Family Court, determined the paternity petition should have been dismissed on equitable estoppel grounds. Petitioner provided semen for the artificial insemination of mother, who is married to her same sex partner. The artificial insemination was not done by a doctor in accordance with Domestic Relations Law 73, so the statutory presumption of legitimacy did not apply. The parties agreed in a “Three-Party Donor Contract” that the petitioner would not have parental rights or responsibilities:

… [I]t is undisputed that all of the parties intended that the petitioner would not be a parent to the child, even if they did contemplate some amount of contact after birth. The petitioner was not present at the child’s birth, and was not named on her birth certificate. Despite the fact that he was undeniably aware of the child’s birth and his possible claim to paternity, the petitioner waited more than three years to assert his claim of parentage. During that time, the child has lived with and been cared for exclusively by the respondents, each of whom has developed a loving parental relationship with her. Although the petitioner asserts that he has had some contact with the child, he does not claim that he has developed a parental relationship with the child or that she recognizes him as a father. Significantly, the petitioner acknowledges that he does not actually seek a parental role, only that he wants a legal right to visitation with the child. Under these circumstances, we find that a hearing was unnecessary, and it is in the child’s best interests to dismiss the paternity petition on the ground of equitable estoppel …  Under the particular circumstances presented here, it would be unjust and inequitable to disrupt the child’s close parental relationship with each of the respondents and permit the petitioner take a parental role when he has knowingly acquiesced in the development of a close relationship between the child and another parent figure … . Matter of Joseph O. v Danielle B., 2018 NY Slip Op 01192, Second Dept 2-21-18

FAMILY LAW (PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))/ARTIFICIAL INSEMINATION (FAMILY LAW, PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))/PATERNITY (ARTIFICIAL INSEMINATION, (PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))

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