K.B. v. J.R

26 Misc.3d 465 (2009)

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Nature of the Case

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Facts

K.B (P) was a female to male transsexual. J.R. (D) knew this and decided to marry P. The first year of marriage was happy and that in the beginning of the second-year P became physically abusive. After four years of marriage, D agreed to conceive a child through artificial insemination with P despite this alleged continued abuse. They selected a sperm donor and collaborated on, contributed to and supported the artificial insemination process. P signed the consent form for D to be inseminated. The procedure resulted in the birth of K.B. Jr. They submitted a birth certificate which reflected that P was the father of the child and that D was the mother. Jr. was born premature and had to remain in the hospital for over one month after his birth. It is undisputed that P financially supported the family for approximately six months while D took a leave of absence from her employment to care for the infant. The medical and school records of the child reflect that P is the father of the child. The parties became estranged. D left the marital home in May of 2006 and left the child in the physical custody of P. D alleged that she was forced to leave the residence due to the domestic violence perpetrated by P. P claims that D left for another man. The parties filed cross-petitions for custody. P filed a petition for custody on July 19, 2007. D filed a cross-petition for custody on August 6, 2007. Eventually D moved to dismiss P's petition for custody since P had no standing, as a biological stranger, to seek custody or visitation with K.B. Jr. and P is not biologically related to K.B. Jr. and could never have been legally married to D and, therefore, he did not have standing to file a petition for custody or visitation. P contends that the doctrine of equitable estoppel should prevent D from claiming that P was not the legal parent of the subject child and that extraordinary circumstances exist to establish the legal standing to petition for custody or visitation.