Raymond T. v. Samantha G.

74 N.Y.S.3d 730 (2018)


David S. (S) and Raymond T. (T) are a married same sex couple. Those two were friends with a single woman, Samantha G. (G). The three discussed how each wished to be a parent and devised a plan whereby a child would be conceived and raised by the three parties in a tri-parent arrangement. The parties agreed that they would consider themselves to be a 'family.' For an eight-day period, S and T alternated the daily delivery of sperm to G for artificial insemination. On Labor Day weekend, 2016, G announced that she was pregnant. The parties jointly made decisions regarding the birth and shared in the payment of fees. T arranged to take a 16-week paternity leave after the child was born. The parties agreed on a pediatrician and agreed to make medical decisions jointly. They further agreed that the child would be covered under T's health insurance plan. The parties agreed to each contribute to a joint savings account for the child and as of the date of the filing of papers in the instant proceeding, T had contributed 50% of the funds in the account. A baby boy, Matthew, was born on May 6, 2017. The birth took place at the home of S and T in New Jersey, with both men present. S was the child's biological father. S signed a New Jersey acknowledgment of paternity on May 11, 2017, when the child was five days old. They all participated in naming the child. After the child's birth, they all spent a week at the home of S and T. Matthew went to live with G and S and T have regular daytime parenting time and in the summer of 2017, the parties and Matthew took a vacation together in the Catskills. Overnight visitation has been slow to start because Matthew was nursing on demand, but overnight visits are scheduled to commence this month. Matthew refers to G. as 'Momma,' S. as 'Daddy' and T. as 'Papai,' which is Portuguese for father. When Matthew needed hernia surgery at the age of two months, all three parties were present at the hospital for the surgery. On June 1, 2017, T. and G. entered into an agreement with literary agents to write a book about the joint parenting of Matthew. The relationship among the parties went south, and on November 12, 2017, S and T filed a joint petition against G seeking 'legal custody and shared parenting time' with Matthew. G. filed a cross-petition against S and T seeking sole custody of Matthew with S and T being granted reasonable visitation. All three parties agreed that T should have standing to seek custody and visitation. S and T contend that T should be declared to have standing to seek custody and visitation as a 'parent,' but he should also be declared to be the third legal parent of Matthew. G conceded that because all three parties agreed to conceive and raise a child together, T should have standing to seek custody and visitation under Domestic Relations Law § 70 (a). T argued strenuously that the right to seek custody and visitation as a 'parent' under the Domestic Relations Law does not automatically bestow parentage on the non-biological party and asked that this court not declare T to be a third legal parent.