Discipline For Children Who Refuse to Engage in Court-Ordered Visitation

One of the most difficult problems facing non-residential parents is a situation where a child refuses to engage in court-ordered visitation. If a child is above a certain age, a child can be constructively emancipated. Another option that the court has is to suspend or terminate residential parent’s right to child support. However, that does not work in every situation. Dealing with such refusal and attempting to resolve this problem, in Matthew A. v. Jennifer A., 2020 N.Y. Slip. Op. 51071(U), Justice Dollinger of the Monroe County Supreme Court imposed disciplinary measures on the children to protect the parental choice of best interests for the children, and also imposed significant sanctions on the parent who violated visitation orders.

In Matthew A., the father sought a contempt finding against the mother for refusing to follow increased visitation provisions that were in place for the parties’ three children, ages 14, 12 and 10. The mother argued that she was unable to force the children to spend additional time with the father and that the children should visit the father upon a schedule determined solely by their wishes. In effect, the mother’s argument would give the children veto power over the father’s access to them. Justice Dollinger wrote about the children’s position that the children “offer no justification, however; they just do not want to have someone dictate their schedule. They want to make that choice themselves and, as they say it, live their own lives. They tell the Court that they can decide their own best interests”.

In the court’s view, this argument was contrary to the most basic of parental rights, the right to make decisions in the best interests of the children. The court stated that “giving parents adequate access to their children is at the very heart of the children’s “best interests”.”

Since the mother’s actions in violating provisions of the court orders related to visitation subjected her to a finding of contempt, the court, utilizing its contempt powers, imposed significant restrictions on the children that the mother would have to enforce. The restrictions included the children’s prohibition of participation in extracurricular activities, prohibition of visits with friends and family members, and any other activities outside of the home.

The children’s attorney objected to those restrictions. In response, the court wrote that:

AFC, in a post-submission email to this Court, argues that the children are being held hostage and the restrictions are substantially impacting their lives, their development, their time with their mother’s family and other pursuits. The restrictions designed by this Court are intended to do exactly that but, the notion that the sons are hostages or are being restrained in their daily activities against their will is misplaced. They have the key to relieve the restrictions: take time to visit with their father as their mother and father agreed the father should have. Once that occurs, the restraints imposed by this Court disappear. The AFC also argues that the father, in seeking this Court order, has unreasonably punished his children and that this Court should take his conduct, in seeking to restrict their busy social lives, as evidence of some malevolent inclination on his part. In this Court’s view, that argument is a serial assault on parenthood: a parent, seeking a child’s compliance with a reasonable parental request, usually invokes increasingly severe penalties to obtain a child’s compliance with any reasonable rule. When a child refuses to, say, eat their vegetables or go to their grandparent’s anniversary celebration, the discipline track starts with “go to your room,” advances to “no television,” then, “give me your phone and your ‘screen,'” followed by ” sorry, “no ride to practice or ride to your friend’s house,” eventually reaching, “sorry, I won’t sign the permission slip to play soccer.” These disciplinary steps are not novel but, instead universal.

In view of contempt findings based on the mother’s behavior, the court offered the mother a way to purge contempt by requiring the mother to finance family reunification therapy for the children and their father with a recognized therapist, with the mother financing the first $7,500.00 in therapy costs, and the mother paying an award of attorneys fees and costs to the father for the fees and costs to bring this motion

Additionally, as a result of the children’s refusal to visit, the father asked that his child support obligation be eliminated or reduced. The court agreed, holding that “the father’s child support obligation is suspended until the three sons participate in the visitation plan detailed by this Court.”

Given the mother’s conduct of involving the children in this litigation and other violations of the court’s orders, I am not surprised by the decision. It will be interesting to see if the order is going to be appealed and if it is, if it will be affirmed.

Expanding Definition of What It Means to Be a Parent

The New York State Court of Appeals ruled last week in Brooke S.B. v Elizabeth A.C.C., 2016 N.Y. Slip. Op. 05903, that a loving caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights.

The ruling came from a litigation between a couple, known in family court papers only as Brooke S.B. and Elizabeth A. C.C. In 2008, Elizabeth became pregnant with the couple’s child through artificial insemination. Though Brooke had no legal or biological ties to the child, a boy, she maintained a close relationship with him for years, cutting his umbilical cord at birth, giving him her last name and raising him jointly with Elizabeth. In 2013, after their relationship ended, Elizabeth tried to cut off Brooke’s contact with the boy. Brooke sued for custody and visitation privileges, but was turned down by a lower court, which found that legal precedent pursuant to Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), did not define a non-adoptive, non-biological caretaker as a parent.

In its ruling, the Court of Appeals overturned Alison D., stating that “the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” It further held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

While Brooke S.B. seems to be applicable primarily to same sex couples, it is easy to see that the same type of argument may be applicable to heterosexual couples in situations where one partner is artificially inseminated.  The Court of Appeals declined to state what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couple. As far as the proof of the parties’ intent, the courts are likely to look at the parties’ participation such activities as birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple.

Surrogacy and Adoption

One area where New York still lags behind other states has to do with surrogacy contracts. New York does not recognize surrogacy contracts statutorily since it deems the underlying surrogacy contracts to be against public policy, and they are void and unenforceable in New York. See N.Y. Dom. Rel. L. § 122. However, what happens to a child born as a result of such contract?

In a recent decision, Matter of J.J., 2014 N.Y. Slip. Op. 24089 (Fam. Ct. Queens Co. 2014), New York Family Court held that a child born as a result of a surrogacy contract can be adopted in the State of New York, notwithstanding the fact that such contract would be void and unenforceable.  In that decision, Judge Salinitro held that a man may legally adopt his husband’s biological twins even though they were born to a woman under a surrogacy agreement that is illegal in New York State. According to the court, the best interests of the twins is the most important consideration in weighing the adoption petition, not the surrogacy agreement that resulted in their birth. According to the decision, a home study provided to the court showed that the children are thriving in the care of the parents.

Thus, the court stated that it is not being asked to enforce the surrogacy contract that forms the basis for the adoption, nor does the relief sought include claims relating to the surrogacy agreement itself. Rather, the case involved proposed adoptive parent who wanted to have equivalent legal status as the birth parent, and is prepared to assume the rights and responsibilities that accompany legal parentage.

Therefore, the surrogacy agreement with the woman who bore the children in Mumbai, India, in 2013 was of no consequence to the adoption. The court specifically found that “where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding”.

Section 122 of Domestic Relations Law declares that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable”. The judge said she found a “paucity” of previous rulings in New York on surrogacy and none directly focused on surrogacy contracts in the adoption context. Accordingly, she called the issue before her an apparent question of first impression in New York courts.

I think that the judge made the right decision. Given that the law does not always keep up with changes in medical technology and society, the courts have to step in and address these types of issues.

Paternity and Equitable Estoppel

Equitable estoppel typically arises as a defense in situations where a person, typically a nonbiological father, seeks to avoid child support obligations or the biological father belatedly seeks recognition of his parental rights.

DNA testing is a way to guarantee that non-custodial parents provide financial support for their children and make it possible to accurately determine a child’s paternity in a quick and inexpensive manner. The widespread availability of reliable genetic testing has reduced the need for extensive fact finding hearings and protracted litigation in the court system and can essentially ensure that the presumptive father is really the child’s biological father. However, in New York, not every putative father entitled to a DNA test.

Consider a scenario where a presumptive father files a paternity petition in a New York family court, together with a petition for custody of a child he believed to be his own. The child’s mother concedes paternity and acknowledges that her son refers to the putative father as his father and that the putative father has had some involvement with the child. Lets assume farther that during the paternity hearing, however, the putative father requests that the Court order a DNA test to confirm that he is indeed the child’s biological father. Must the Court issue an order subjecting the child to DNA testing?

In New York, the answer is no. Under what is known as the doctrine of equitable estoppel, the Court may deny an application for a DNA test in a paternity proceeding on the principle of fairness and in the best interests of the child. Equitable estoppel precludes a presumptive father from speaking out against his own acts, commitments or representations if they are reasonably relied upon by the child.

If a substantial parent-child relationship has developed between the putative father and the child and no biological father has come forward to contribute to the costs of the child’s upbringing, New York courts may find that it is not in the child’s best interests to admit DNA evidence that disproves the presumptive father’s paternity. The doctrine of equitable estoppel has often been applied to protect the child from an untimely assertion or denial of paternity, which, if permitted, would damage an existing parent/child relationship.

In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals directly addressed the application of equitable estoppel in paternity and support proceedings. In that case, the court found that the respondent, who never married the mother and was not the biological father of the woman’s child, was equitably estopped from denying paternity. The child was believed to be the product of a brief liaison between the respondent and the mother. The respondent initially acknowledged paternity and provided some financial support. He had intermittent visitation with the child, although he was often not even in the same country as the mother and child. Four years after the child’s birth, it was determined that he was not the biological father. The court found that the respondent was equitably estopped from raising the issue of paternity, both by statute (Family Court Act § 418 [a]; § 532 [a]) and at common law. The court concluded that both the statute and case law required that the best interests of the child controlled whether a person was required to continue support payments, even if it was belatedly determined that he was not the biological parent. “The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. . . . [T]he issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.”

The doctrine of equitable estoppel evolved as a balancing test between the best interests of the child and the rights of the parent. Where there has been a bond formed between the parent and child, the interest of the child in preserving that relationship and the obligations of the parent toward that child, outweigh the putative father’s interest in establishing whether he is really the child’s biological father.