Dawn M. v. Michael M.

47 N.Y.S.3d 898 (2017)

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Nature of the Case

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Facts

W and H were married on July 9, 1994. After being unsuccessful at attempts to have a child, the parties went to a fertility doctor. W was artificially inseminated with H's sperm and conceived a child. Unfortunately, that child was miscarried at 10 weeks gestation. W met Audria G. and they became close friends. Audria and her boyfriend moved into an apartment downstairs from H and W. When Audria's boyfriend moved out, Audria moved upstairs with H and W. The relationship changed and the three began to engage in intimate relations. They began to consider themselves a 'family' and decided to have a child together. The parties and Audria decided they would try to conceive a child naturally by H and Audria engaging in unprotected sexual relations. It was agreed before a child was conceived, that W, Audria, and H would all raise the child together as parents. Audria became pregnant and J.M. was born. W's medical insurance was used to cover Audria's pregnancy and delivery, and W accompanied Audria to most of her doctor appointments. For more than 18 months after J.M.'s birth, all three continued to live together. Audria and W shared duties as J.M.'s mother including taking turns getting up during the night to feed J.M. and taking him to doctor visits. The relationship became strained. Audria and W moved out of the marital residence with J.M. A divorce action was commenced by W against H in 2011. After the divorce action was commenced, H no longer considered her to be J.M.'s parent. A custody case was commenced by H against Audria. H and Audria settled their custody proceeding by agreeing to joint custody; residential custody with Audria and liberal visitation accorded to H. W still resides with Audria and J.M. and sees J.M. on a daily basis. She testified that she brought this action to assure continued visitation and to secure custody rights for J.M. because she fears that without court-ordered visitation and shared custody, her ability to remain in J.M.'s life would be solely dependent upon obtaining the consent of either Audria or H.