Recent New York cases have maintained an agreed-upon custody arrangement where the mother, father, and the paternal grandparents had joint custody of the children with primary physical custody and decision making authority granted to the grandparents. Such cases involve an investigation into and determination of “extraordinary circumstances” to first determine standing rights as between parents and non-parents/biological strangers followed by the usual best interests determination, presuming that “extraordinary circumstances” do exist.
In Dawn M. v. Michael M., the Court found Plaintiff to be a “non-biological” parent under a “pre-conception” agreement between the biological parents. Specifically, the facts before the Court were that the parties married in 1994, yet could not conceive a child together. In 2004, the parties met “Audria” and thethree of them entered into an intimate relationship, ultimately deciding to act as a family unit and have a child “together”. Before conception it was agreed among Dawn, Michael, and Audria that they would raise the child together as parents. Michael and Audria had sexual relations and a son was born in January, 2007.
Not surprisingly, shortly thereafter Dawn instituted a divorce action against Michael, and the three parties filed competing claims regarding custody of the minor boy.
Eventually, the Court arrived at a “tri-custody” arrangement; it found Dawn, being a parent by virtue of the pre-conception agreement, had standing to apply for custody, and that the best interest of the child would be best served by having all three individuals remaining in the child’s life. Further, the Court said that Michael’s own conduct in fostering the relationship now estops him from attempting to contravene the parenting arrangement.
The parties certainly created an unconventional family dynamic; yet, a bond was created with the son and the Court ruled, logically, “a person is responsible for the natural and foreseeable consequences of his or her actions especially when the interest of a child is involved.