Calling it the logical extension of the legalization of same-sex marriage and the 2016 expansion of unmarried partners’ custody rights in New York, a judge has granted “tri-custody” of a boy to a man and two women who have all helped raise the youngster.
Suffolk County Supreme Court Justice H. Patrick Leis III said in his March 8 determination that both biological parents of a child identified as “J.M.” have shown their love and concern for the now-10-year-old—but so has the woman named “Dawn M.” who brought the action seeking the unique “tri-custody” arrangement.
The biological mother of the child, “Audria,” supported Dawn M.’s petition for a formal custody arrangement. Audria and Dawn M. were romantically involved at the time of the child’s birth in 2007, and the biological father, “Michael M.,” acceded when the child was born to having both Audria and Dawn M. serve as joint mothers to the child he fathered with Audria through natural means, Leis’ ruling said.
Mike M. was also romantically involved with both women and was married to Dawn M. until a divorce action was commenced in 2011. The boy now lives with Dawn M. and Audria, while, prior to Leis’ ruling, Audria and Michael M. had shared joint custody.
Leis called both Dawn M.’s tri-custody request and the one-time living arrangement that led to the three-way parenting involvement “unique.”
But he said he can find nothing that prevents tri-custody in the 2011 Marriage Equality Act, which legalized same-sex marriage in New York, nor in the state Court of Appeals’ ruling in 2016 in Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1. In Brooke S.B., the court expanded the definition of a “parent” for visitation and custody purposes to the nonmarried, ex-partner of a biological parent in a decision hailed by homosexual rights advocates (NYLJ, Aug. 30, 2016).
“Tri-custody is the logical evolution of the Court of Appeals decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL [Domestic Relations Law] §10-a which permits same-sex couples to marry in New York,” Leis wrote from Central Islip.
The matter was Dawn M. v. Michael M., 00109/2011.
The biological father opposed Dawn M.’s request to share equally in custody.
Leis called Michael M.’s opposition “unconscionable,” given the negative effect the judge said that removing Dawn M. from the parenting arrangement would have on the boy.
“J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with plaintiff,” Leis wrote. “No one told these three people to create this unique relationship. Nor did anyone tell defendant to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother.”
Leis said from his first-hand observations of the three adults and in talking with the boy, that J.M. is a well-adjusted child who considers both women his mother. He distinguishes between the two as “Mommy with the orange truck” (Audria) and “Mommy with the gray truck” (Dawn M.), Leis wrote.
“The in camera with J.M. leaves no doubt that J.M. considers both plaintiff and Audria to be equal ‘mommies’ and that he would be devastated if he were not able to see plaintiff,” the judge wrote. “The interview with J.M. also clearly shows that he enjoys his present living situation and would not want it altered in any way.”
Karen Silverman of Commack represented Dawn M.
Silverman said in an interview Thursday that based on research she did for this litigation, Leis’ decision is the first time a judge in New York has formally given “tri-custody” to three adults for the same child.
“Brooke S.B. opened the door to a lot of people in nontraditional families,” she said. “But this is the first decision where, after trial, a judge said, ‘We are granting joint custody to three people,’” Silverman said. “That is brand new. And it’s time for this decision.”
Kenneth Molloy of Central Islip represented the father. He said Leis’ ruling is a broad one that could have major significance on future custody cases in New York.
“I am disappointed,” Molloy said in a March 10 interview. “It sounds like the judge is creating new law. I think this opens up a can of worms that they are not going to get the cover back on until the Legislature does something.”
Susan Sommer, director of constitutional litigation for Lambda Legal, said in an interview Thursday that the ruling is in keeping with the extension of the custodial and visitation rights that the Court of Appeals identified in the Brooke S.B. ruling last year. Sommer represented Brooke S.B. in that matter but was not involved in the case decided by Leis.
“The court recognized that contemporary families take many forms,” Sommer said in an interview Thursday. “What is most important—as the New York Court of Appeals understood in the Brooke S.B. case—is the best interests of children in secure relationships with their parents, whether or not the family is connected through biology or marriage. The children come first.”