Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

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