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Remanding a 2017 trial court decision in a renowned same-sex custody matter, the New York Supreme Court, Appellate Division, held yesterday in the Matter of K.G. v. C.H., that while a non-biological, non-adoptive party to an adopted child did not have standing as a “parent” under New York Domestic Relations Law Sec. 70 to pursue custody and visitation based solely on a preadoption agreement reached during the parties’ relationship to adopt and raise a child together, the trial record was incomplete as to whether such standing could be achieved based on an equitable estoppel theory.

A brief history of the extensive fact-pattern is worth noting here, since the Appellate Division’s affirmance of the trial court’s conclusion that K.G. lacked standing as a parent based on the preadoption agreement was essentially limited to the facts of this case.

The parties were in a romantic relationship that concluded in December, 2009.  In 2007, they agreed to internationally adopt and raise a child together.  The parties’ planned for C.H. to complete the adoption, the child would arrive in the United States, and K.G. would second adopt the child to become a legal parent.

  • When the parties’ relationship ended, no child for adoption had yet been identified by the adoption agency.  C.H. argued that when the parties’ relationship ended, so too did the preadoption agreement.  K.G. disagreed and argued that the agreement, once made, conferred standing upon her as a parent to file a petition for custody and visitation.
  • Extensive testimony was taken at trial regarding the nature of the agreement, the parties’ relationship, and the parties’ respective intentions regarding whether such agreement survived the relationship’s conclusion in 2009.
  • In March, 2011, the adoption agency identified and offered a child to C.H. for adoption.  C.H. adopted the child and K.G., despite the relationship’s demise, developed a loving and affectionate relationship with the child.

Based on the above general facts and underlying details developed at trial, the trial court held that the “parties’ mutual intention to raise an adopted child together did not survive the end of their romantic relationship.”  As a result, the trial court, as affirmed by the Appellate Division, rejected K.G.’s argument that the mere creation of the preadoption agreement conveyed standing upon K.G. to seek custody and visitation with the child.  In so affirming, the Appellate Division noted that the trial court’s decision did not mean that – in every case – the mere end of a romantic relationship does not, in and of itself, terminate the plan to adopt and raise a child together.  Rather, said plan terminated under the specific facts and circumstances at issue.

The Appellate Division also held that the trial court’s ruling on this component of its decision was consistent with the 2016 Court of Appeals seminal decision in Matter of Brooke, which expansively defined who is a “parent” under New York’s Domestic Relations Law to include non-biological, non-adoptive parents and, as a result, who has standing to seek custody and visitation of a child.  The Appellate Court provided:

Contrary to K.G.’s arguments, this legal analysis does not eviscerate Brooke.  If the parties have a plan in place when a particular child is identified, then they become parents under Domestic Relations Law Sec. 70 at that time, with standing thereafter to seek custody/visitation in the event of a change in the household.

As noted above, however, the Appellate Court remanded so that the trial court could more fully develop the record and consider K.G.’s position that she has standing as a “parent” under an equitable estoppel theory designed to ensure fulfillment of the child’s best interests  stemming from a recognized parent-child relationship.  Specifically, “under Domestic Relations Law Sec. 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a non-biological, non-adoptive adult” with the emphasis placed on the child’s point of view.  the key is whether the relationship between the subject adult and child “rises to the level of parenthood.”

As a result of the incomplete record, the Appellate Court could not rule on what factors a court should consider to establish “parent” status under the estoppel concept.  In so holding, the Court found that C.H. had a right to be heard in opposition to the estoppel theory, and the child’s voice was not heard (K.G.’s requests during the trial court matter for the appointment of an attorney for the child, a forensic evaluation and/or a Lincoln hearing where the child undergoes questioning by the judge in private).

Developments in this newsworthy case will continue to unfold as the trial court conducts further proceedings in a manner consistent with the Appellate Court’s ruling.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey and Manhattan.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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In a case of first impression in New Jersey, I was privileged to represent the mother and custodial parent of a transgender child in a contested, but successful, application for  the child’s legal name to be changed to the name which more accurately reflects the gender with which he identifies.  The case, Sacklow v. Betts,  has resulted in a reported decision (precedential) and gives guidance for judges who will no doubt be addressing these issues in the future.

Janet Sacklow retained counsel to represent her in connection with various issues surrounding her child’s gender identity issues.  This included treatment for hormones, mental health services, and allowing the child to assume the name of Trevor Adam. The child’s father had objected to various applications over the years related to the child’s gender identity, and initially objected to this as well, asking that the child’s given name, Veronica, continue.  During the trial in the matter, the father seemingly changed his mind, while at the same time expressing concerns that a name change was not in the child’s best interests.  Given the history of the father taking inconsistent positions in connection with the child, it was requested that the court make an independent finding as to the application for a name change.

The court found that the standard that should be used when there is a request for a name change when a child is transgender is whether or not the name change is in the child’s best interests.  However, the court then went on the note factors which should specifically be considered by a judge making such a decision.  Those factors are:

(1) The age of the child; (2) The length of time the child has used the preferred name; (3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity; (4) The history of any medical or mental health counseling the child has received; (5) The name the child is known by in his or her family, school and community; (6) The child’s preference and motivations for seeking the name change; (7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.

In this case, the child had disclosed the fact that he identified as male several years previously.  He had been under the care of health care providers for a significant amount of time and was confident in his gender identity.  He was known as Trevor in school, to his friends, and to the vast majority of his family.  He was treating with Children’s Hospital of Philadelphia and was in the process of his mental and physical transition to male.  He was shortly going to obtain a drivers’ license, and the idea of having a picture that did not “match” his name caused him significant stress. The court, which had taken testimony from both parents as well as the child, unequivocally concluded that it was in the child’s best interests to have his name changed.

The law relating to gender identity, sexual orientation and associated issues is constantly changing and developing. This case provides litigants and their counsel guidance in an emerging are of the law that will likely be addressed by courts in this and other jurisdictions.

MillnerJennifer_twitterJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.