New York State Pension Rights for Same Sex Couples

A man I personally admire, New York State Comptroller, Thomas DiNapoli,recently recognized, for pension purposes, a Canadian same-sex marriage. He decided that the marriage was valid even though New York State’s highest court, the Court of Appeals, recently held that same-sex marriages are not permissible under the New York state constitution. Mr. DiNapoli recognized the same-sex union between two state workers who got married in Canada.

Mr.DiNapoli’s decision was taken to court, and Justice Thomas J. McNamara in the case of Godrey v. Hevesi, 5896-06, agreed with him. Judge McNamara noted that New York has long recognized the legality of marriages performed in other states and countries, even if such marriages could not be performed in New York.

While proponents of same-sex marriages may view this decision as a victory, it raises as many questions as it settles. Since the Court of Appeals decided Hernandez v. Robles 7 NY3d 338 (2006), the rule in New York has been that same-sex marriages are not permissible.

Judge McNamara’s decision does not necessarily provide a loophole. The problem lay in difference between laws passed by a sister state and laws passed by a foreign county.

The starting point is the United States Constitution’s Full Faith and Credit Clause. This constitutional provision states that one state must give full faith and credit to a judicial ruling of another state. (There are some exceptions, but it is beyond this scope of this posting to get into them.) Similarly, there is a rule known as “comity”. Under comity, a state judge can enforce a foreign county decision if the requirements of due process are met. Unlike the Full Faith and Credit Clause, a court is not required to recognize a foreign nation’s actions.

Now, that brings us back to Judge McNamara’s decision. Two other judges have refused to recognize same-sex unions performed in Canada. In the cases of Funderburk v. New York State and Martinez v. Monroe Community College,two other trial judges decided contrary to Judge McNamara. The Appellate Divisions have not spoken on this issue. But, ultimately, this issue will have to be decided by the New York Court of Appeals. Frankly, I don’t think anyone knows which way the court will decide on this issue.

Equitable Estoppel And Paternity

In an earlier posting, I discussed a legal concept known as “equitable estoppel”. This is principal which allows a court to declare that a man is the legal father, even though is not the biological father.

Recently, Judge Richard Lawrence, Family Court, Nassau County was presented with such an issue. The case, Matter of KJP v. VB was reported in the September 24, 2007 issue of the New York Law Journal.

The mother brought an action for paternity. She further asked that there no be any genetic testing, but instead that the respondent be declared the father by equitable estoppel. She asserted that the respondent is the father, and the child has always known him to be his father. Although there is no father’s name on the birth certificate, the mother explained that she had stopped seeing the father prior to the birth, due to his violence against her. She claimed that the respondent knew about the child and that told informed him that he was the father when the child was two years old. The mother claimed that she never identified any other person as the father, and the child always considered the respondent to be his father.

The Respondent opposed the petition and demanded genetic testing. He only admitted to being the father of the child’s sister. He claims that the first time he learned that the mother was claiming that he was the father was when he was served with paternity papers. He claimed that the child calls him by his first name and that he saw the child only when visiting his daughter. The respondent stated that he never held himself out to be the father.

Judge Lawrence noted that the mother, seeking to enforce the doctrine of equitable estoppel has the burden of proof before the court. The moving party, in this case the mother, must set forth what is called a “prima facie” case. A prima facie showing is more than a mere allegation. In this instance, the law requires that the mother show that the child considers the respondent to be his father, and that the child could face some harm if the motion is denied.

Judge Lawrence noted that a hearing should be held to determine the credibility of the witnesses. Further, “the evidence should be construed from the child’s perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing includes the child’s interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect of testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered. Importantly, the paramount concern in an equitable estoppel case is the best interests of the children.”

Faced with such conflicting stories from the parties, Judge Lawrence ordered that a hearing be held to decide whether or not to order genetic testing. “Ultimately, a court shall not order genetic testing in a paternity matter without first issuing a written finding that it is not in the best interests of the child on the basis of equitable estoppel.”

This case merely restates the position that a biological stranger could be found to be the legal father, if it is in the bests interests of the child. As more children are born out of wedlock, and couples co-habitat without being married, the doctrine of equitable estoppel will be applied with greater frequency.

Parental Alienation

Recently, Judge Richard Lawrence, Family Court, Nassau County, noted in Matter of FS-P v. AHR, published in the New York Law Journal on August 31, 2007, that “a court may suspend a non-custodial parent’s duty to provide child support after a finding that the custodial parent has willfully denied or interfered with visitation or has engaged in ‘parental alienation.’”

At issue in this case was whether the father could raise parental alienation as a defense before there was a support order. The father was seeking to invoke this defense to the mother’s request for an order of support. Judge Lawrence recognized that after an order is issued, the court can relieve the father of the responsibility if there is interference with child visitation. But, can the father raise it as a defense to prevent an order from being issued in the first place? In this instance, the Judge said it is a defense.

A couple of points: (1) If there is a support order in place, I’d strongly advise against stopping the payments if there is game playing on the visitation. As long as there is a court order, it must be obeyed. If there is game playing on the visitation, then the remedy is to go to court and ask to Family Court judge to suspend support.

(2) If there is are no orders of visitation or support, and there is game playing on visitation, please don’t get mad, don’t do something foolish. While you could try and rely on Judge Lawrence’s decision, the better option is just go to the Family Court and make out a petition for visitation.

(3) Parental alienation is a big topic and I’m leaving that for another post.