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Lamenting what he called an “imbalance of remedies,” Nassau County Family Court judge has denied joint custody to a woman now separated from her same-sex partner, even though current law might make custody available to a man under similar circumstances.

Judge Edmund Dane (See Profile) dismissed Jann P.’s joint custody petition on June 30 in Jann P. v. Jamie P., V-XXXXX-13, even though the couple’s separation agreement stipulated that the boy would only be raised by the two women. Dane said the law was “clear that a non-parent may not use the doctrine of equitable estoppel to assert a right to custody or visitation.”

Nevertheless, Dane observed Jann could not resort to a Family Court Act Article 5 paternity proceeding as a means to establish standing to seek custody. Jann cannot say she is John’s father and the law does not permit proceedings to declare maternity, the judge said.

He said the “predicament might have once been viewed as a normal and acceptable consequence of society’s traditional view of what constitutes a family.”

But the 2011 Marriage Equality Act removed gender distinctions from matrimonial laws, he noted.

“If we as a state are to continue down this path of gender equality in the context of family law, consideration needs to be given to whether article 5 of the Family Court Act should be amended to permit someone in the petitioner’s position to have the same legal remedies available to her as would a man in the same circumstances,” said Dane.

Jann P. married Jamie P. in 2012, after Jamie gave birth to a son, John, in 2011.

Jann P.’s attorney, William Sheeckutz Jr. of East Meadow, said Jann and Jamie were a couple at the time of John’s birth. There are no divorce proceedings pending, he said.

Jann and Jamie later separated and the 2013 agreement described John as the child of the marriage. The agreement said John would only be raised by the women as his parents, adding that joint custody would be determined after “further and in depth discussions.”

Jann filed her joint custody bid in December 2013.

Jamie claimed Jann lacked standing, and Jann countered that Jamie should be equitably estopped from refusing to let her fulfill a parental role in the boy’s life.

The attorney for the child supported Jamie’s dismissal motion.

In his decision, Dane said the case presented a “timely and important issue” that courts and state lawmakers would likely be hashing out for some time—whether there were circumstances where a same-gender spouse had standing to seek custody of a non-biologically related child considered to be a child of the marriage.

He observed that courts have said nonparents can be granted custody over a parent’s objection if the nonparent successfully shows the parent relinquished a superior custody right because of “surrender, abandonment, persistent neglect unfitness or other extraordinary circumstances.”

Here, Jann argued that the boy’s mental well-being was the extraordinary circumstance that gave her standing. But that assertion, Dane said, did not rise to an extraordinary circumstance.

In addition, Jann argued that she and Jamie acknowledged Jann’s role as a parent leading up to the separation agreement and in the agreement itself. Denying standing would be a denial of equal protection based on Jann’s sexual preference, Jann argued.

Dane observed that a man who holds himself out as a child’s father can be estopped from denying paternity and be compelled to pay child support.

In the current case, Dane said Jann was effectively trying to apply the doctrine to establish maternity, but he said the state Court of Appeals rejected such an application in a 2010 ruling, Debra H. v. Janice R., 14 NY3d 576.

He noted the Debra H. court held there was no inconsistency in applying equitable estoppel to decide paternity during support matters, but not to create standing in visitation and custody matters.

The judge said there was an element of Jann’s equal protection argument that was “somewhat troubling to the court.”

He said the law foreclosed nonparents from using equitable estoppel for custody or visitation. But there was authority for the proposition that a man who created a parental bond with a child could assert equitable estoppel to establish paternity.

And once declared the father, the man is a parent “in the eyes of the law and has standing to seek custody or visitation, even if the man is not biologically related to the child.”

Dane said it stood to reason to if Jann was a man who held himself out as the father and had formed a parental bond, he could have had standing to seek a paternity declaration that if successful, could give him standing to seek custody or visitation.

In an interview, Sheeckutz said that since the ruling’s release, the child had been removed from Jamie and put into foster care because of a neglect petition.

He said his client was considering whether to try intervening. Sheeckutz said also he filed a notice of appeal, but said Dane released a “very good decision plotting out” the legal issues at play in the case.

Jamie is represented by Lauren Broderick, deputy chief in the Legal Aid Society of Nassau County’s Family Court Bureau. Broderick declined comment.

Dennis Monahan of Nesconset represented the child.

Dane credited summer intern Ryan Elizabeth Koleda in helping prepare the decision.