Cite as: SQ v. JM, 307032/11, NYLJ 1202609169554, at *1 (Sup., NY, Decided June 12, 2013)

307032/11

Justice Ellen Gesmer

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Decided: June 12, 2013

ADDITIONAL CASES

FM, Petitioner, v. JM and SQ, Respondents; 350032/12.

MW, Petitioner, v. JM and SQ, Respondents; 350098/12.

DECISION AFTER TRIAL

 

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In Action 1, plaintiff SQ (Husband) seeks a divorce from defendant JM (Wife), an order of custody of their son JQ (dob 7/6/08), and an order determining that he is not the father of HM (dob 12/11/09) and KM (dob 6/4/11) (collectively the Girls). At this time, the Wife opposes an award of custody of JQ to the Husband, but does not herself seek custody. She also opposes his application for an order determining that he is not the father of the Girls.

In Action 2, petitioner FM, the Wife's father (Maternal Grandfather), seeks an order granting him grandparent visitation with Jackson and the Girls. In Action 3, petitioner MW, the Wife's mother (Maternal Grandmother), seeks custody of the Girls, a grandparent visitation schedule for herself with JQ, sibling visitation among the Girls and JQ, and various financial relief related to the Girls.1

By stipulation dated November 13, 2012, the parties agreed that the Maternal Grandmother would have sole legal and physical custody of the Girls. By stipulation dated May 31, 2013, the Wife withdrew her request for visitation with any of the three children. By stipulation dated June 3, 2013, the Husband, the Maternal Grandfather and the Maternal Grandmother entered into a stipulation that resolved all other issues among them, provided that the court awarded custody of JQ to the Husband.

Therefore, the only non-financial issues remaining to be decided after trial were the Husband's applications for a divorce; custody of JQ; and an order determining that he is not the father of the Girls.

The court held a trial of the non-financial issues on June 3, 4 and 5. The Husband and Wife each testified. By stipulation, the court received into evidence the report of Dr. Marvin Aronson, Ph.D., the court appointed mental health forensic, and each party was permitted to cross-examine him. On June 5, the Husband testified to establish his claim for the entry of a judgment of divorce pursuant to DRL §170(7), and the court granted it, with a stay of the entry of the judgment until resolution of all of the ancillary relief.

FINDING OF FACTS

The background facts are set out in this court's decisions and orders on motion sequence three in the first action, dated October 1, 2012, and on motion sequences five and one in the first action, dated November 15, 2012, and will not be repeated here.

 

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Credibility

The Wife's testimony was not credible. Her testimony was rambling and internally inconsistent. Her affect was often inconsistent with her testimony. She could not remember events that appeared to be significant; for example, she could not remember whether she had ever kicked the Husband, and she did not recall making the video for HM described below. She also admitted having made false statements under oath; for example, she swore on a Family Court petition in 2011 that HM lived with her, although at that time, HM had not lived with her since early 2010.

Both the Husband and Dr. Aronson were credible witnesses.

Facts

The Husband and Wife met in person in February 2007, after having first met online and corresponded for some time. They were married on May 11, 2007 in the Temple of the Church of Latter Day Saints in Las Vegas, Nevada, where the Husband's parents reside. The Husband then moved to New York to live with the Wife at 25 Central Park West, an apartment paid for by the Maternal Grandmother.

The Wife was then 26. She had not graduated from high school. She had worked some as an actress but was not then working and is still not working. She had previously been married, but that marriage lasted just five months. She suffered then and continues to suffer from mental illness, manifested in a complex set of symptoms, described further below.

The marriage was unhappy and tumultuous from the very beginning.2 At the time of their marriage, both parties had been diagnosed with obsessive compulsive disorder. The Wife would insist that the Husband perform various rituals before going to bed. If he did not, she would scream loudly and threaten to call the police. On one occasion, she began kicking him. The Husband occasionally called her disparaging names. The parties also fought about food. The Wife told the Husband that she was anorexic. When he brought home food for her, she became very angry. She ordered food from a service called 'Zone Diet,' but did not actually eat the food delivered, instead letting it rot. She often stayed in bed all day and complained that she was too weak to get up. The Husband became increasingly concerned about her health, and, in the fall of 2007, he approached the Maternal Grandmother about his concerns. Soon after, the Maternal Grandmother asked the Husband to leave the home, and he did. He rented an apartment in Brooklyn.

A few months later, the Wife called him and said that she was pregnant. She also told him that she was not sure that he was the father because she had been using artificial insemination with another man's sperm.3 The parties had a DNA test, which showed that the Wife was carrying the Husband's child. At some point that spring, the Husband moved back in with the Wife, and they prepared for the child's birth. In June 2008, they moved to 733 Amsterdam Ave., New York, New York (the Marital Residence).

When the Wife went into labor, she refused to call the midwife, but the Husband did. JQ was born at home on August 7, 2008. The parties employed a baby nurse for the next three months. After that, the parties enrolled JQ at Basic Trust, a nearby day care center.

In the next few months, the Husband provided most of JQ's basic care; that is, he fed him, changed him, bathed him, purchased his formula, prepared his meals, got him ready for school, picked him up from day care, and took care of him when he cried during the night. At the same time, the Husband was working full time, and going to school online to finish his Bachelor's degree. The Wife spent most of her time lying in bed, often complaining that she was too weak to get up. When the Husband asked her to help during the night, she said that she could not because she would be a 'horrible wreck' the next day. Occasionally, she pushed JQ to school in his stroller after the Husband got him ready. She first gave JQ a bath when he was almost two years old.

 

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Before JQ was born, the Wife told the Husband that she would resume doing artificial insemination after JQ was born. When JQ was about three months old, she told the Husband that she was going to try to have another baby using another man's sperm. On both occasions, the Husband begged her not to use artificial insemination, and told her it would destroy their family. She insisted that she would go ahead, and he told her that he would have nothing to do with the process. They had many fights about this.

The parties are both Mormons. The Husband understood that it was the Mormon point of view that people should not get divorced. Therefore, he did not seek a divorce, although he was unhappy that the Wife was continuing to attempt to have a child by artificial insemination.

In July 2009, the Wife told the Husband that she was pregnant.

In or about July 2009, the Wife made a video of herself speaking into the camera to her unborn child. She tells the unborn child that she had been thinking about what she should tell her about her father. She concludes on the video that she should tell her that she belongs to God.

The Husband told the Wife that he would not acknowledge that he was the father of the child to be born. They agreed that the Husband would not attend the birth. When the Wife went into labor, the Husband took JQ to school and went to work. HM was born on December 11, 2009. The Wife did not list a father on the birth certificate, and gave HM her own last name. She did list the Husband on the birth announcement, but she did not tell him about it before she sent it out; she did the same after KM's birth.4

When the Wife fired the baby nurse when HM was only a month old, the Husband became concerned about the Wife's ability to care for HM. Although he continued to maintain that he was not HM's father, he was concerned about her safety, so he offered to be responsible for her for the first half of each night. One night, during the second half of the night, the Wife refused to get up when HM cried. The Husband told her that he would have to call the Maternal Grandmother the next day because he was upset that the Wife was not providing adequate care for HM, but he had obligations at work and could not be responsible for all of HM's care. As a result of the Husband's call, the Maternal Grandmother picked up HM the next day, and HM has lived with the Maternal Grandmother since that day. The Husband never spent any significant period of time with HM again. Around that time, the Wife arranged a baby blessing ceremony for HM. The Husband told the Wife that he did not want to participate, and he did not.

The Husband provided health insurance for HM by listing her as his step-daughter.

After HM went to live with the Maternal Grandmother, the Husband, Wife and JQ continued to reside at the Marital Residence. In or about February 2010, the Wife told the Husband that she was planning to have another child, using artificial insemination with sperm from another man. He again asked her to stop and she refused. At the end of September 2010, she told him that she was pregnant. They argued again, and she again told him to leave. He did, but they reconciled about a week later. On October 17, they had another argument, and the next morning, the Wife told the Husband to leave. On that occasion, as on many others, she told him that if he did not leave, she would call the police and claim that she was being beaten. The Husband left the Marital Residence and never lived with the Wife again. Having run out of money, he moved to his parents' home in Nevada. He talked on the phone occasionally with JQ and sent him presents but otherwise had no contact with him. He flew back to New York in March 2011, but the Wife had taken JQ to a conference in Utah. While there, JQ fell and was injured and the Wife repeatedly called the Husband for advice on how to get him treatment.

When the Husband left JQ in the Wife's care in October 2010, he was worried about his welfare, but did not think he had any alternative, since he thought that he would be charged with kidnaping if he attempted to take JQ with him. He now regrets having left JQ in the Wife's care for that period, and realizes that it showed poor judgment. During that time, the apartment was often filthy. The Wife often locked JQ into his room or confined him to his high chair or playpen. She did not feed him properly.

On April 28, 2011, the Husband again flew to New York, and moved into the apartment in Brooklyn where he still resides. A few days later, the Wife had him served with papers for Family Court.

 

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The Family Court imposed supervised visits on the Husband, without first holding a hearing. Soon after, the Husband commenced this divorce action, and the court consolidated all pending Family Court proceedings into this action. After the Husband had participated in several supervised visits, this court lifted the requirement of supervision. The Husband began to see JQ without supervision four hours every Saturday, from August 2011 to May 2012.

In order to visit JQ, the Husband got up before 6:00 a.m., and took the subway to the Wife's home. When he picked up JQ, he noticed that JQ was often filthy and his teeth were dirty. He was usually dressed in clothes that were dirty and too small for him, and often inappropriate for the weather. JQ was always ravenous, so the first thing that the Husband did each week was to take him to Whole Foods for breakfast. He then took him to his office, which he had outfitted with toys, or on other outings. The Husband bought new clothes for JQ most weeks, and also brushed his teeth. At the end of some of the visits, the Wife tried to shove HM into the Husband's arms.

KM was born on June 4, 2011. The Wife did not list a father on the birth certificate, and she gave the child her own last name.

Before the birth of HM and KM, the Husband never told anyone that he would hold himself out as, or act as, a father to either of them,5 and once they were born, he did not do so. He never asked either child to call him "Dad," or any equivalent name, and neither of the Girls does so.

In May 2012, the court permitted the Husband to have JQ overnight on Wednesdays and on alternate weekends. From the time he had rented his current apartment, he had prepared a bedroom for JQ. On weekends, he took him to Coney Island, and to see his Maternal Grandfather and his Maternal Grandfather's wife, both of whom JQ had not seen for months.

On July 9, 2012, JQ began residing with the Husband. Pursuant to a so-ordered stipulation dated July 12, 2012, the Mother was permitted to have visits with JQ on weekday afternoons. Nonetheless, the Mother has not had any contact with the Girls or JQ since at least August 2012. On February 26, 2013, in view of the Wife's failure to have any contact with JQ for more than six months, this court entered an order granting sole legal and physical custody of JQ to the Husband pendente lite.

Since August 2012, JQ has been flourishing, both at his summer camp and in his pre-Kindergarten program. On a typical summer week day, the Husband got JQ up, gave him a bath and got him dressed and ready for camp. On the subway, they discussed what would happen that day. The Husband then picked him up from the Maternal Grandmother's home at 6:00 p.m., and they returned to Brooklyn. When they got home, the Husband made dinner, fed JQ and got him to bed by 8:00 p.m. On weekends, they often went to the beach at Coney Island, where JQ loves collecting shells, flying kites and watching people fishing and talking to them. Sometimes they went to the Maternal Grandfather's home upstate. On Sundays, they went to church, where JQ made friends.

On a typical day during the school year, the Husband gets JQ up, gives him a bath and gets him ready for school. They take the subway into Manhattan, where the Husband drops JQ at Clockwork Learning on West 15th Street. Before leaving, he gives JQ a hug and a kiss and they rub noses. The Husband picks him up between 5:30 and 6:00 p.m., and they return to Brooklyn, except on Tuesday nights, when JQ sees his therapist at the Jewish Board of Family and Child Services, often followed by a visit to the Lego store. At home, after dinner, the Husband reads to JQ, and he goes to sleep with his 'dream light' and a stuffed animal.

For the fall of 2013, the Husband has enrolled JQ in kindergarten at PS 215, his local school, which is well rated. Before enrolling him, the Husband spoke to other parents who spoke well of the school. The Husband plans to walk JQ to school in the mornings. He will look into after school programs for JQ to attend. Alternatively, he will arrange for a parent in the neighborhood or a member of his church to pick up JQ and look after him until the Husband returns from work.

 

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The Husband registered JQ for the summer camp at the McBurney Y for the summer of 2013. The program meets at PS 41 in the West Village. He chose the program partly because it will be convenient for continuing to have JQ see his therapist, with whom he has a good relationship. The Husband has also taken JQ to his pediatrician at Tribeca Pediatrics.

When JQ first began living with the Husband, he arrived with only the clothes on his back. He is now comfortable in the Husband's home. His bedroom is filled with toys. He has friends in the neighborhood whom he has met at church.

At the time that the parties met, the Husband was suffering from obsessive compulsive disorder. For many years, he has been in treatment and took various medications. He is still in treatment, but no longer taking medications. He is currently free of symptoms and is no longer impaired. Among other things, he has learned to recognize and control his potentially compulsive behaviors. The Husband had attended the University of Wisconsin, but dropped out before receiving a degree, and worked in a grocery store. In 2008, he received his BA from the University of Phoenix after studying online.

Dr. Aronson conducted an investigation in this case over a one year period, from May 2012 to May 2013, and then wrote a report. Dr. Aronson recommended without reservation that the Husband be granted sole legal and physical custody of JQ because he has a good bond and an excellent relationship with JQ, demonstrated competency in parenting him, and has created a safe, stable home for him. Dr. Aronson had no concerns about the Husband's ability to make appropriate decisions for JQ. In contrast, Dr. Aronson concluded that the Wife has multiple significant psychiatric issues that impair her ability to parent. He noted that she refused to cooperate with the forensic examination, including refusing to provide records and authorizations for him to obtain her records. Her thinking was irrational and she was unable to participate in discussions with Dr. Aronson about the issues at hand. Her behavior when observed with JQ raised questions about her ability to provide him basic safety. Her refusal to understand and seek treatment for her psychological condition also adversely affects her parenting skills. Her psychological condition deteriorated over the period of Dr. Aronson's observations. Dr. Aronson concluded that the Wife's belief that the Husband is unfit is delusional.

Dr. Aronson noted that the Husband has a very limited relationship with HM and KM, so that an order determining that the Husband is not their father would have a negligible impact on them.

ANALYSIS

PATERNITY OF HM AND KM

Section 73 of the Domestic Relations Law provides that:

1. Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes.

2. The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he had rendered the service.

(DRL §73). HM and KM were born during the marriage of the Husband and Wife. The Wife acknowledges that HM and KM were born as a result of her use of in vitro fertilization (IVF), using the sperm of a man other than her Husband, and that the Husband did not execute the statutorily required consent form. Consequently, the irrebuttable presumption of paternity created by DRL §73 does not apply. However, the court still must find that the Husband is the father of HM and KM unless he establishes by clear and convincing evidence that the presumption of paternity should be overcome. Even that showing would not end the inquiry, because the court could still find that the Husband is the father of HM and KM if it finds that he is equitably estopped from denying paternity. For the reasons set forth below, the court finds that the Husband has overcome the presumption and is not equitably estopped from

 

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denying paternity, and accordingly finds that he is not the father of HM and KM.

In Laura WW v. Peter WW (51 AD3d 211 [3rd Dept 2008]), the Third Department held:

Consistent with our State's strong presumption of legitimacy, as well as the compelling public policy of protecting children conceived via [IVF], we follow the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by [IVF], shifting the burden to the husband to rebut the presumption by clear and convincing evidence.

(51 AD3d at 217; see also H.M. v. E.T., 14 NY3d 521, 530 [2010, Smith, J., concurring] [suggesting that the "persuasively reasoned" holding in Laura W.W. in favor of a rebuttable presumption of consent should be applied to determine the parentage of a child born to a same sex couple living together]; see also Debra H. v. Janice R., 14 NY3d 576, 612 [2010, Smith, J., dissenting in part, to the same effect]).

The Wife argues that the Husband has failed to prove that he did not consent to her utilization of IVF. She argues that he consented to her doing so by telling her that he would be a father to any child that she gave birth to and by continuing to live with her after he knew that she was engaging in IVF. However, the court does not credit the Wife's testimony that the Husband agreed to act as a father to HM and KM for several reasons. First, as set forth above, the Wife's testimony was generally not credible. Secondly, her testimony is inconsistent with her creation of a video to explain to HM who her father was in which she stated not that the Husband is her father, but that she "belongs to God." Third, the Wife's testimony is also inconsistent with her failure to list the Husband on the birth certificate of either child as the father.

Moreover, the court does not agree that the Husband's continuing to live with the Wife constitutes consent to her using IVF, given his clear testimony about his strong religious objection to seeking a divorce. He testified convincingly that he only overcame his repugnance to getting a divorce when the Wife's behavior toward him and her refusal to let him participate in their son's life made it untenable to do anything else. In addition, although they continued to be married and to live together, there was no testimony that they continued to have sexual relations after the birth of their son.

The court also rejects the Wife's argument that this case is factually similar to Laura WW v. Peter GG. In that case:

the husband knew that his wife planned to undergo the [IVF] procedure and observed her picking out a donor based on characteristics which matched his own; he signed a "Frozen Donor Semen Specimen Agreement" which set forth the terms of purchase and delivery of the semen specimen; he faxed the donor agreement to the California-based sperm bank and paid for the specimen with a credit card; he stayed home to care for the other children to enable his wife to go to the doctor's office for insemination; and, significantly, he acknowledged in his testimony that had the couple stayed together, he would have accepted the child as his own.

(Id at 217-18). None of those facts is present here. Instead, the Husband argued with the Wife about her decision to engage in IVF, told her he would have nothing to do with the process, and never consented to the process orally or in writing, or participated in it in any way. He was unequivocal that he never intended to accept either HM or KM as his own. Unlike the husband in Laura WW, the Husband in this case did not participate in bringing HM and KM into the world. The court finds that the Husband has established by clear and convincing evidence that he did not consent to the Wife's use of IVF to give birth to HM and KM and accordingly, that he has overcome the presumption of legitimacy.

However, that does not end the inquiry, because the court could still find that the Husband is the father of HM and KM if it finds that he is equitably estopped from denying paternity. The Court of Appeals has stated that

[t]he purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law

 

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imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position.

(Matter of Shondel J. v. Mark D., 7 NY3rd 320 [2006]; see also Commissioner of Social Services ex rel. Elizabeth S. v. Julio J., 20 NY3d 995 [2013]; Andre Asim M. v. Madeline N., 103 AD3d 500 [1st Dept 2013] [equitable estoppel may apply when child justifiably relied on putative father's representation of paternity to the child's detriment because a parent-child relationship has developed between them]).

The Wife argues that the Husband should be equitably estopped from denying paternity. However, the court finds that none of the facts that would support a finding of equitable estoppel are present here. There is no evidence that the Husband encouraged the Wife to participate in IVF; that he told her that he would support and act as a father to any child born as a result; or that he held himself out to anyone as the father of HM and KM. Most importantly, there is no evidence that he ever encouraged HM and KM to view him as their father. Indeed, Dr Aronson testified convincingly that the Father has a very minimal relationship with them, and that they would not be adversely affected by a determination that he is not their father. Accordingly, the court finds that the Husband is not the father of HM and KM.

CUSTODY OF JQ

A determination of child custody must serve the best interest of the child and must promote the child's welfare, based on the totality of the circumstances (Eschbach v. Eschbach, 56 NY2d 167 [1982]; Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]). As the Court of Appeals wrote in Friederwitzer, neither parent has a superior right to custody of a child:

The only absolute in the law governing custody of children is that there are no absolutes. The Legislature has so declared in directing that custody be determined by the circumstances of the case and of the parties and the best interest of the child but then adding "In all cases there shall be no prima facie right to the custody of the child in either parent."

(Id. at 93-94, citing DRL §§240 and 70). Among the factors that courts should consider in determining the child's best interests in a custody dispute are the arrangement that is likely to provide the most stability for the child, the fitness of the respective parents (Id. at 94), the quality of the environment in each parent's home, the quality of parental guidance each parent is capable of providing, each parent's ability to meet the child's emotional and intellectual needs (Eschbach,supra, at 172), and the ability of each parent to foster the child's relationship with the other parent (Bliss v. Ach, 56 NY2d 995 [1982]; Lubit v. Lubit, 65 AD3d 954 [1st Dept 2009]).

The evidence at trial showed overwhelmingly that the Husband is a fit parent for JQ, and that it is in JQ's best interest that custody be awarded to the Husband. The only evidence to the contrary was the uncorroborated testimony of the Wife, which Dr Aronson concluded was delusional. Accordingly, the court grants sole legal and physical custody of JQ to the Husband.

ACTIONS 2 AND 3

In view of the grant of custody of JQ to the Husband, the court will approve the stipulation entered into between Maternal Grandmother, the Husband and the Maternal Grandfather. That stipulation disposes of Actions 2 and 3, and accordingly, the court will deem all pending motions in actions 2 and 3 resolved by that stipulation.

Accordingly, it is hereby

ORDERED that the Husband shall have sole legal and physical custody of JQ; and it is further

ORDERED and DECLARED that the Husband has established that he is entitled to entry of a

 

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judgment of divorce pursuant to DRL §170(7); and it is further

ORDERED and DECLARED that the Husband is not the father of HM and/or KM; and it is further

ORDERED that, upon completion of the financial aspects of the divorce action, the plaintiff-Husband shall settle a judgment incorporating the above provisions; and it is further

ORDERED that entry of the judgment of divorce is stayed pending final resolution of the financial matters in the divorce action; and it is further

ORDERED that the stipulation dated June 3, 2013 fully resolves Actions 2 and 3 and all pending motions therein; and it is further

ORDERED that the Husband and the Wife shall appear in Part 24 for a status conference on the financial aspects on this case on July 26, 2013 at 9:30 am; and it is further

ORDERED that all other requests not granted above are denied. This constitutes the decision and order of the court.

Dated: June 12, 2013

ENTER:

1. The Maternal Grandmother and Maternal Grandfather are no longer married to each other.

2. I do not credit the Wife's testimony that the Husband was violent toward her, as her testimony about his alleged acts of domestic violence were inconsistent and incredible.

3. In fact, she had started going to a fertility clinic in 2006.

4. In any event, neither birth announcement specifically stated that he was the father.

5. At a court proceeding in Family Court on May 18, 2011, the Husband's attorney stated that the Husband was not denying paternity of HM, but the Husband did not authorize his attorney to make that statement and terminated his services immediately after that court date.