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Justice H. Patrick Leis III

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Non-biological, non-adoptive mother Dawn M. sought “tri-custody” of ex-husband Michael M.’s 10-year old biological son, J.M. Michael was denied summary judgment, and a trial on custody and the parties’ visitation rights occurred. Dawn and Michael could not have a child, but became involved in an intimate relationship with Audria, who conceived a child by Michael. The parties all agreed the child would be raised by all three as parents. Audria and Dawn moved out of the marital residence with JM residing with them and Michael having visitation. For the first 18 months of JM’s life Audria and Dawn shared duties as JM’s mothers, but Michael indicated, after the divorce, he no longer considered Dawn JM’s parent. Dawn sued to ensure continued visitation rights and secure custody rights for JM without depending solely on Audria and Michael’s consent. The court granted shared legal custody finding it would be in JM’s best interest, and noted the parties created this “unconventional family dynamic,” and Audria fully supported Dawn’s petition and the arrangement. It ruled tri-custody was “the logical evolution of the Court of Appeals’ decision in Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1, and the passage of the Marriage Equality Act permitting same-sex couples to marry.