Richardson-Mendelson
Respondent KH moved to dismiss her former same-sex partner, AF’s application for custody of the two subject children. The parties decided to have children after becoming registered as domestic partners, and agreed KH would conceive by artificial insemination, and both children would bear AF’s surname. The parties separated and agreed to a visitation schedule that KH disallowed after they became involved in an altercation during a visitation exchange. KH filed a petition for child support, which she withdrew. The court found while the parties held themselves out as the children’s parents, KH was the biological parent, and the parties were not married, nor did AF legally adopt the children. It ruled AF’s papers were devoid of any allegations to support a finding of extraordinary circumstances. The court also found that neither equitable, nor judicial estoppel applied, noting while KH asserted in the Family Court petition for child support that AF was a parent warranting a finding for support payments, the proceeding was withdrawn. Thus, it concluded KH was not now asserting inconsistent positions sufficient for application of judicial estoppel as securing a judgment in a prior action was a necessary element for judicial estoppel. Hence, AF’s petition was dismissed.
