Judge Theresa Whelan
The court considered the issue if petitioner was precluded from maintaining a custody/visitation petition regarding the subject child, born to respondent, a former same-sex partner. It found petitioner was not precluded, denying respondent dismissal. Respondent previously filed a petition for child support claiming petitioner should be declared a parent for purposes of establishing a child support order. It was so established and petitioner was declared a parent, and charged with support of the child. Here, respondent asserted the petition must be dismissed as petitioner was not a "parent" for purposes of custody/visitation under Family Court Act Article 6, thus had no standing to bring the action. The court ruled such inconsistent positions would not be countenanced, finding judicial estoppel precluded respondent from assuming one position in this action that was contrary to the position she took in the child support proceeding merely because her interests changed. Thus, as respondent petitioned the court to recognize petitioner as a parent and prevailed in that matter, she was judicially estopped in this action from asserting that petitioner was not a parent. Hence, petitioner’s motion to dismiss the petition for custody was denied.
