The New York Law Journal reported on May 29, 2009 that the N.Y. Family Court Denied Jurisdiction to Hear Same-Sex Support Issue. The case at hand was actually an International case of sorts, where a same-sex couple was alleged that in "August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating." The biological mother, named H.M. in the court documents, filed a support application in Canada, it was referred as an interstate to New York, to be handled at the Rockford Family Court level.
The history of the case can be found here within the filed court opinion:
http://www.nycourts.gov/reporter/3dseries/2009/2009_04240.htm
Some interesting points not properly raised in the suit upon Motion to Dismiss, is that there was no contract between the same-sex partners to be enforced at all for a non-biological parent to pay any form of money on behalf of a child that is not "hers." In fact, to satisfy the statue of frauds, since the controversy in a support action would exceed $500.00, it would make perfect sense that a contract would be required before the state is able to adjudicate, not just a mere allegation that lady b encouraged lady a to have a child by artificial insemination. Following the latter logic a doctor encouraging a lady to artificially inseminate would be on the hook for child support despite the sperm not being his just based on his "strongly encouraging the mother to be artificially inseminated."
We need to promote responsible behavior, and if two homosexuals want to encumber their own liberty interests, there should be a contract at the very least that proves beyond a reasonable doubt that they intended for such abridgment to occur. Similarly, the petitioner just wanted the court to believe her version of the facts without producing any real evidence, so if the court claimed that it had jurisdiction, the obvious facts were never raised to withstand a motion to dismiss.
Here is an interesting excerpt from the opinion in H.M. v. E.T.
The Supreme Court, a court of general jurisdiction in law and equity (see NY Const, art VI, § 7), is competent to entertain all applications unless the court's subject matter jurisdiction to entertain a particular application has been specifically proscribed (see Sohn v Calderon, 78 NY2d 755, 766; Thrasher v United States Liab. Ins. Co., 19 NY2d at 166). In contrast, the Family Court is a court of limited subject matter jurisdiction (see NY Const, art VI, § 13; Family Ct Act § 115). Unable to exercise powers beyond those granted to it by the precise language of the Constitution or a statute (see Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366; Matter of Walker v Walker, 86 NY2d 624, 629; Matter of Pearson v Pearson, 69 NY2d 919, 921; Matter of Silver v Silver, 36 NY2d 324, 326), the Family Court is only competent to entertain such applications as the Constitution or a statute specifically enumerates (see Matter of Roy v Roy, 109 AD2d 150, 151;Matter of Mouscardy v Mouscardy, 63 AD2d 973, 974-975).
There was considerable controversy, even between the majority and dissenting opinions of the court that appear to be paving the way for the state to get involved in more and more cases despite no contract, despite no common-law basis, and despite jurisdiction being limited by statutory language. We need to watch these courts closely as common-sense becomes "not so common anymore."
Matter of H.M. v E.T. |
2009 NY Slip Op 04240 |
Decided on May 26, 2009 |
Appellate Division, Second Department |
Covello, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and subject to revision before publication in the Official Reports. |
The below is only an excerpt, you can obtain a copy of the full opinion from here:
http://www.nycourts.gov/reporter/3dseries/2009/2009_04240.htm
Decided on May 26, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT STEVEN W. FISHER, J.P.
JOSEPH COVELLO
DANIEL D. ANGIOLILLO
RUTH C. BALKIN
CHERYL E. CHAMBERS, JJ.
2007-09323
(Docket No. U-110-07)
[*1]In the Matter of H.M. (Anonymous), respondent,
v
E.T. (Anonymous), appellant. APPEAL, in a proceeding pursuant to Family Court Act article 5-B, inter alia, to establish a support order, from an order of the Family Court (William P. Warren, J.), entered September 11, 2007, in Rockland County, which, among other things, granted the petitioner's objections to an order of the same court (Rachelle C. Kaufman, S.M.), dated March 7, 2007, which, upon, in effect, granting E.T.'s motion to dismiss the petition, dismissed the petition.
Rosenthal & Markowitz, LLP, Elmsford, N.Y. (Adrienne J. Orbach
and Lisa Solomon of counsel), for appellant.
Proskauer Rose LLP, New York, N.Y. (Robyn S. Crosson and
Justin F. Heinrich of counsel), for
respondent.
OPINION & ORDER
COVELLO, J. In this Family Court proceeding, a child's birth mother seeks to have another female, lacking legal ties to her, and lacking biological and legal ties to the child, adjudicated a parent of the child and required to pay child support. The question
presented for our consideration is whether the Family Court has subject matter jurisdiction to entertain such an application. Because the
application is not of a type that the Family Court, a court of limited jurisdiction, has been specifically authorized to entertain, we answer in the negative.
On or about October 23, 2006, H.M., an Ontario resident, and the birth mother of a 12-year-old child, filed a "Support application" with a Canadian agency, seeking to have E.T., a Rockland County resident, and H.M.'s former same-sex partner, adjudicated a parent of the child. H.M. also sought an award of child support retroactive to the date of the child's birth.
In support of her application, H.M. alleged that in August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating. H.M. alleged that the parties then agreed that she would attempt to become impregnated via artificial insemination, and that after a child was born, they would parent that child together. H.M. alleged that pursuant to this agreement, and with E.T.'s assistance and encouragement, she became impregnated by sperm from an anonymous sperm donor. In September 1994, H.M. gave birth to the subject child. H.M. alleged that over the next few months, E.T. acted as a parent to the child by nurturing and caring for him. However, H.M. alleged that in January 1995, E.T. ended the parties' relationship. H.M., who subsequently relocated with the child to Canada, alleged that after the relationship ended, she made numerous requests of E.T. for child support, all of which were refused.
Approximately two months after H.M. filed her support application, the Canadian agency [*2]transmitted it to the New York State Interstate Central Registry's Division of Child Support Enforcement. About two months later, the application, deemed a "Paternity/Support Petition" pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B [hereinafter UIFSA]), was forwarded to the Family Court, Rockland County, for action. The Family Court then issued a summons to E.T., notifying her of the petition, and informing her that the matter would be heard before a Support Magistrate.
