Judge's "tri-custody" ruling is a polyfamily precedent

The parents and the 10-year-old

A family-court judge in New York State has granted parental custody rights to all three members of a broken-up triad who raised a 10-year-old son together.

Does this set a precedent? Apparently so, at least in New York State. Here's a report from the New York Law Journal:

In 'Unique' Case, Judge Grants Legal Custody of 1 Child to 3 Adults

By Joel Stashenko

Calling it the logical extension of the legalization of same-sex marriage and the 2016 expansion of unmarried partners' custody rights in New York, a judge has granted "tri-custody" of a boy to a man and two women who have all helped raise the youngster.

...Leis called both Dawn M.'s tri-custody request and the one-time living arrangement that led to the three-way parenting involvement "unique."

But he said he can find nothing that prevents tri-custody in the 2011 Marriage Equality Act, which legalized same-sex marriage in New York, nor in the state Court of Appeals' ruling in 2016 in Brooke S.B. v. Elizabeth A.C.C. , 28 NY3d 1. In Brooke S.B., the court expanded the definition of a "parent" for visitation and custody purposes to the nonmarried, ex-partner of a biological parent in a decision hailed by homosexual rights advocates (NYLJ, Aug. 30, 2016).

"Tri-custody is the logical evolution of the Court of Appeals decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL [Domestic Relations Law] §10-a which permits same-sex couples to marry in New York," Leis wrote from Central Islip.

...Leis called [the father] Michael M.'s opposition [to the ruling] "unconscionable," given the negative effect the judge said that removing Dawn M. from the parenting arrangement would have on the boy.

"J.M.'s best interests cry out for an assurance that he will be allowed a continued relationship with plaintiff," Leis wrote....

...Silverman said in an interview Thursday that based on research she did for this litigation, Leis' decision is the first time a judge in New York has formally given "tri-custody" to three adults for the same child.

"Brooke S.B. opened the door to a lot of people in nontraditional families," she said. "But this is the first decision where, after trial, a judge said, 'We are granting joint custody to three people,'" Silverman said. "That is brand new. And it's time for this decision."

Kenneth Molloy of Central Islip represented the father. He said Leis' ruling is a broad one that could have major significance on future custody cases in New York.

"I am disappointed," Molloy said in a March 10 interview. "It sounds like the judge is creating new law. I think this opens up a can of worms that they are not going to get the cover back on until the Legislature does something."

Susan Sommer, director of constitutional litigation for Lambda Legal, said in an interview Thursday that the ruling is in keeping with the extension of the custodial and visitation rights that the Court of Appeals identified in the Brooke S.B. ruling last year.

..."The court recognized that contemporary families take many forms," Sommer said in an interview Thursday. "What is most important — as the New York Court of Appeals understood in the Brooke S.B. case — is the best interests of children in secure relationships with their parents, whether or not the family is connected through biology or marriage. The children come first."

Related Decisions: Dawn M. v. Michael M., 00109/2011.

The whole article (March 9, 2017).

● Here's the judge's decision, issued March 8th.

● The story first went widely public in the New York Post (a scum-sucking rag, but never mind):

Historic ruling grants ‘tri-custody’ to trio who had threesome [sic]

By Julia Marsh

A Long Island couple and a neighbor with whom they had a threesome [sic again] have been granted “tri-custody” of their 10-year-old son in a groundbreaking ruling.

...Bay Shore residents Dawn and Michael Marano, who wed in 1994, had a conventional marriage until they befriended downstairs neighbor Audria Garcia in 2001.

Garcia had been living with her boyfriend, but when they split up, she moved upstairs and “began to engage in intimate relations” with the Maranos, Leis’ ruling says.

Because Dawn Marano, 47, was infertile, Michael Marano, 50, fathered the boy, born on Jan. 25, 2007, with Garcia, 48, court papers say.

“It was agreed, before a child was conceived, that [the Maranos and Garcia] would all raise the child together as parents,” the judge said.

Dawn Marano’s insurance covered Garcia’s pregnancy, and the two women attended doctor appointments together, the papers say. They also took turns getting up in the night to feed the baby.

The threesome was one big happy family for 18 months until Garcia and Dawn Marano decided to become a twosome. They moved out and into a new home in nearby Central Islip in 2008.

Then Michael Marano sued Garcia for custody of their son. Dawn Marano then sued her husband for divorce.

Michael Marano and Garcia agreed to joint custody, but Dawn felt left out. As neither a biological nor adoptive mom to the boy, she had no automatic legal right to custody.

Although she still lives with Garcia, Dawn Marano filed another suit “to secure custody rights for [the boy] because she fears that without court-ordered visitation and shared custody, her ability to remain in [the boy’s] life would be solely dependent upon obtaining the consent of either Audria or [Michael],” Judge Leis explained.

Michael Marano opposed his ex-wife’s custody bid and the case went to trial.

Leis chastised him in the ruling Wednesday, noting that no one had told the dad “to conceive a child with his wife’s best friend.”

In awarding Dawn Marano shared custody, Leis cited a ruling by the state’s highest court last summer that allowed nonbiological or adoptive parents to seek custody of a child if they had a prior relationship with that child.

The judge took cues from the boy himself in making the unusual decision.

Asked how he told his two moms apart, the child had explained that one was the “mommy with the orange truck” and the other the “mommy with the gray truck.”

Leis concluded the boy knows the “two women as his mother.”

He also credited all three parents with raising their son “in a loving environment.”

...“They’re thrilled with the ruling, absolutely thrilled,” said Dawn Marano’s attorney, Karen Silverman.

Michael Marano, however, was upset by the decision.

“I am going to appeal,” he told The Post.

...Manhattan family-law expert Nancy Chemtob, who is not involved in the case, said Leis did the right thing by “protecting the child’s best interest.”

The original (March 10). Several outlets basically repeated this story, including the Daily Mail, Cosmopolitan, New York magazine, Refinery29, and Jezebel.


● Glamour added some editorializing:

A New York Judge Just Granted Child Custody to a Polyamorous Family

Although it's now legal for same-sex couples to adopt children throughout the United States, another group still lags behind when it comes to their families' legal recognition: polyamorous people. With the exception of California, states don't explicitly allow children to have more than two legal parents. But a judge in New York just set the precedent for this to change.

...At least 17 percent of Americans aged 18 to 44 have engaged in consensual non-monogamy, so rulings like these are becoming more and more relevant. As Leis points out, the ability to provide a child with a good upbringing is not contingent upon how many parents are involved — and the law should reflect that. This is a small but important step in making sure the law recognizes how personal and diverse someone's sexuality can truly be.

Whole article (March 13).


● So did Slate:

New York Court Affirms Poly Parenthood With Three-Way Custody Ruling

By Christina Cauterucci

A New York judge granted custody to each of the three once-throupled parents of a 10-year-old boy last week, further cementing the state’s reputation as a place where queer families can grow, thrive, and stay together.

...Leis framed it as a valid application of equal-marriage rights and a 2016 case that expanded the rights of unmarried, non-biological parents to share custody of their children. In that case, Brooke S.B. v. Elizabeth C.C., the New York Court of Appeals ruled that a woman who’d raised a child since birth with her longtime partner was still a parent with custody rights, even though she had no biological relationship to the child, wasn’t married to his biological mother, and never formally adopted her son.

The victory of Dawn Marano and her child could set solid legal precedent for future custody claims of parents in queer or polyamorous families, a necessary next step in a vision of parenthood and child-rearing that extends beyond the boundaries of monogamous marriage.

Funnily enough, this is the exact future predicted by Supreme Court Chief Justice John Roberts in his dissent on the 2015 equal-marriage ruling Obergefell v. Hodges. While arguing that the slippery slope of same-sex marriage could lead to the total breakdown of social norms and family structures, he cited the important legal-theory volume “Married Lesbian Throuple Expecting First Child,” a New York Post article from 2014.

“If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children?” Roberts wondered. That's Roberts' dystopia: a world in which children are supported and cared for by three or more loving parents who all want to be involved in their kids’ lives.

Whole article (March 13).

● The Christian News Network ran a straightforward report, then, sure enough, closed with a quote from Daniel Webster: “If the power of the gospel is not felt throughout the length and breadth of the land, anarchy and misrule, degradation and misery, corruption and darkness will reign without mitigation or end.”

● Diana Adams, New York attorney specializing in alternative families, writes in her firm's newsletter,

...This decision is groundbreaking for the polyamorous community and for all parents in NY who do not have a biological or legal relationship with their child.

Laws on parental status differ by state, which is one of the challenges for some of our clients, whose parenting status may differ as they travel between states, going in and out like their cell phone service....

The next frontier, which we continue to push, are the rights of parents who have a parental relationship with a child without a legal tie, such as:

– female same-sex partners of birth mothers, who have a parental relationship with the child but did not marry the birth mother or do a second parent adoption, or

– non-biological third parents in polyamorous triads and other three-parent family situations.

Some other states have recognized de facto parents or psychological parents, but NY had not. In this case, a New York court recognized a third parent in a polyamorous triad, who had no biological or legal tie to the child, as a parent! This NY court used the words de facto parent, which is new for our state, and progress.

This is an exciting moment that could be useful for other NY cases, although it is not controlling Appeals Court precedent. The facts in this case are relevant to whether it could be applicable to others. The non-biological third parent was married to one of the biological parents from before the birth, intended by all parties to be a parent to the child from before conception, the child knew her as a second mother for his whole life, and at 10 years old was able to articulate his desires to court, such that the court found that separating him from his non-bio mother would be damaging to him and counter to his best interests.

A third parent who enters a child’s life after the child’s birth might be treated differently, and courts still retain a tremendous amount of discretion as they interpret the subjective standard of “best interests of the child,” which can vary tremendously in more conservative rural areas.

If you have questions or concerns about your parenting rights and would like to make sure you are doing everything you can legally to protect them, contact our office for a consultation.

Updates:

● A short, clear CNN.com story: Judge gives custody of child to 1 dad and 2 moms (March 14). And check for further recent news.

● The poly-focused attorney Benjamin Schenker in Maryland follows up with Poly Custody in Maryland and D.C. (March 16):

​This decision was handed down right around the same time as the Maryland Court of Appeals issued a decision establishing "de facto" parenthood in Maryland. (http://www.mdcourts.gov/opinions/coa/2016/79a15.pdf). Both (actually three cases, because there were two consolidated cases in New York) involved same-sex couples where the non-biological parent did not adopt the child.

​There is a crucial difference between the New York case and the Maryland case. The New York decision specifically rejected a test for determining when de facto parenthood may be applicable. Maryland, on the other hand, adopted a test developed in Wisconsin: 1. a biological or adoptive parent must consent to the establishment and formation of a relationship between the child and the prospective parent; 2. the prospective parent and the child must have lived in the same household; 3. the prospective parent must have voluntarily supported the child, both financially and by taking responsibility for the child's care; and, 4. the prospective parent must have been involved with the child long enough for a parental-type relationship to have formed.

​It is also important to note that while New York and Maryland reached these decisions last year, the District of Columbia has offered such a situation for about a decade! D.C. Code Sec. 16-831.01(1) defines a de facto parent as someone who either: lived in the same household as the child when the child was born or adopted, has taken on full and permanent responsibilities as the parent, and has held himself out as a parent (with the consent of the child's legal parents), or; has lived in the same household as the child for at least 10 of the 12 months preceding the action for custody, has formed a strong bond with the child with the support of the child's parent, has held himself as a parent (with the consent of the child's legal parents), and has taken on full and parental responsibilities of the child.

It is important to note that the father in the New York case might appeal, and then it might be overruled on appeal. Also, while this judge may have made this decision, one cannot expect similar results in every situation.

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