By Bradley Kaufman, J.D. Class of 2018 Touro Law Review Junior Staff Member

In the matter of Dawn M. v. Michael M.,[1] decided on March 8, 2017, in Suffolk County Supreme Court, the Honorable Patrick Leis, III granted a “tri-custody” arrangement.[2] This ruling is considered “groundbreaking”[3] and “historic.”[4] In Dawn M., the husband (defendant) and wife (plaintiff) got married in 1994.[5] Shortly thereafter, the couple discovered their fertility issues after numerous failed efforts to conceive a child.[6] Several years later in 2001, the plaintiff met and became close friends with Audria G., a resident in a downstairs apartment in the same apartment building.[7] Audria had a boyfriend at the time she met the plaintiff, but ultimately ended that relationship and moved into the same apartment with the plaintiff and defendant.[8]

The three individuals then began to “engage in intimate relations.”[9] Husband Michael M., wife Dawn M., and Audria called themselves a family and agreed to conceive a child together, in which Audria would be artificially inseminated because Dawn was infertile.[10] The fertility doctor that the trio visited refused to artificially inseminate Audria with Michael M.’s sperm because she was not the wife of Michael M.[11] Audria eventually became pregnant after having unprotected sexual intercourse with Michael M. and the child was born in 2007.[12] Prior to conception of the child, however, the three individuals all agreed that they would raise a child together as a “thruple.”[13] Ultimately, the marital relationship between Dawn M. and Michael M. dissolved, in which Dawn M. filed for divorce, moved out of the apartment where the threesome resided and moved into a residence to live with Audria and the child.[14] A custody action was commenced and settled preceding the divorce action, which resulted in joint custody of the child between Audria and Michael M. with residential custody to Audria and liberal visitation for Michael M.[15] Because Dawn M. was not awarded custody or visitation and was fearful that she would not be in the child’s life because of her lack of biological connection to the child, Dawn M. petitioned the Court for her own custody and visitation rights of the child.[16]

Pursuant to New York Domestic Relations (DRL) law §70,[17] “either parent may apply to the Supreme Court for a writ of habeas corpus . . . and the Court . . . may award the natural custody . . . of such child to either parent.”[18] Ever since Alison D. v. Virginia M.[19] was decided in 1991, “parent” in the context of DRL §70 excluded non-biological individuals, who fostered significant relationships with the child.[20] However, the definition of “parent” from Alison D., was effectively overruled in 2016 in Brooke S.B. v. Elizabeth A.C.C.,[21] to include non-biological, non-adoptive partners, who establish “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”[22] With respect to Custody and Visitation Orders, the Court is required to maintain the best interests of the child,[23] which is accomplished by recognizing what will “promote his welfare and happiness.”[24] The court in Dawn M. ordered a “tri-custodial arrangement”[25] and proffered that the child’s best interests “cry out for an assurance that [the child] will be allowed a continued relationship with the plaintiff,”[26] notwithstanding the plaintiff’s lack of a biological link to the child.[27]

Since before the child was born, Dawn M. acted like a mother to the child despite Dawn M. not carrying the child.[28] For example, Dawn M. went with Audria to a majority of her doctor appointments and Dawn M. used her medical insurance to cover the pregnancy and delivery of the child.[29] Upon the child being born, Dawn M. rotated with Audria to feed the child during the night and took the child to the doctor as well.[30] The only family the child knows consists of his three parents and refers to both Dawn M. and Audria as “mommy.”[31] The child makes no distinction based on biology and thus considers Dawn M. and Audria as “equal mommies.”[32] The court adamantly agrees with the child’s assertions and reasoned that the child would be devastated if his ability to see Dawn M. ceased.[33] The court opined that the child clearly demonstrated that “he enjoys his present living situation and would not want it altered in any way.”[34] Thus, the court granted a tri-custody arrangement because it would undoubtedly serve the best interests of the child.[35]

One of the rationales behind Dawn M. petitioning the court for custody and visitation was to avoid Dawn M. having to get permission from either Audria or Michael M. in order to see the child.[36] The court reasoned that this case “represents the logical next step,” in the expansion of who constitutes a “parent” to have standing to seek custody and visitation after Brooke S.B.[37] The court is confident that because of the thruple’s cohesive history in raising the child, in which the thruple have already made significant decisions pertaining to the child’s “health, education, and welfare,” it will continue to do so moving forward.[38] However, it is no guarantee that the thruple’s cohesiveness will stand the test of time.

Currently, Dawn M. and Audria are living together but separately from Michael M. The court rejected Dawn M.’s request for visitation of one weekend a month because it would take visitation time away between Michael M. and the child.[39] The court justified its denial of Dawn M.’s weekend visitation because she essentially has de facto residential custody of the child as a result of living with Audria, and thus sees the child almost daily, resulting in substantially more time with the child than Michael M.[40] It will be interesting to see if Dawn M. will be satisfied with the arrangement and her visitation schedule if her relationship dissolves with Audria and she moves out. Moving out will result in the loss of de facto residential custody and significantly reduce her overall visitation with the child because the court denied her one-weekend-a-month request. New York Supreme Courts deciding custody and visitation matters may have their hands full when ordering tri-custody arrangements if the above-referenced situation comes to fruition. This decision is also worth monitoring to see if it makes its way up to the Court of the Appeals to settle the tri-custody issue of first impression in New York.

[1] 2017 WL 923725 (Suffolk Cnty. Sup. Ct. 2017).

[2] Id. at *2.

[3] Julia Marsh, Historic ruling grants ‘tri-custody’ to trio who had threesome, New York Post (March 10, 2017), http://nypost.com/2017/03/10/historic-ruling-grants-custody-to-dad-and-mom-and-mom. [hereinafter “Historic Ruling.”].

[4] Historic Ruling, supra note 3.

[5] Dawn M., 2017 WL 923725 at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dawn M., 2017 WL 923725 at *2.

[11] Id. at *2.

[12] Id. at *2-3.

[13] Id. at *3; “A sexual relationship . . . between three people.” MacMillian Dictionary, http://www.macmillandictionary.com/us/dictionary/american/thruple (last visited March 20, 2017).

[14] Dawn M., 2017 WL 923725 at *3.

[15] Id.

[16] Id.

[17] N.Y. Dom. Rel. §70 (McKinney’s 2017).

[18] Id.

[19] 572 N.E.2d 27 (N.Y. 1991).

[20] Id. at 29.

[21] 61 N.E.3d 488 (N.Y. 2016).

[22] Id. at 490.

[23] N.Y. Dom. Rel. §240 (McKinney’s 2017).

[24] Id.

[25] Dawn M., 2017 WL 923725 at *5.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id.

[30] Dawn M., 2017 WL 923725 at *3.

[31] Id.

[32] Id. at *4.

[33] Id.

[34] Id.

[35] Dawn M., 2017 WL 923725 at *4.

[36] Id. at *3.

[37] Id. at *5, n.6.

[38] Id. at *4.

[39] Id.

[40] Dawn M., 2017 WL 923725 at *4.

By Shira Bloom, J.D. Class of 2018 Touro Law Review  Junior Staff Member

The Surrogates Court Procedure Act provides that a Guardian ad Litem may be appointed by the Court to represent an infant, person with a disability, or an absentee.[1] A petition may be filed with a court of competent jurisdiction to appoint a named Guardian ad Litem or the Court may choose to appoint a Guardian to assist in protecting the legal rights of the ward from the Part 36 list.[2] The Guardian ad Litem must be an attorney admitted to practice law in the State of New York.[3] She must file a consent to act and a statement relaying that she has no interest or conflict adverse to her ward.[4] She must file an appearance and diligently take all steps deemed necessary to protect the interest of her ward, file a report of her activities, and make a recommendation to the court.[5] She must always review that file, ascertain that service of process on her ward was proper, and that the court has jurisdiction. The Guardian ad Litem must report to the court what she believes to be in the ward’s best interests, regardless of whether it coincides with the wishes of the ward.[6]

Kathie McCormack Durst married real estate heir, Robert Durst in what appeared to be a happily-ever-after tale.[7] Kathie was close to completing medical school at the Yeshiva University Albert Einstein College of Medicine when she mysteriously vanished on January 31, 1982, and has not been seen or heard from since that date.[8] Kathie’s body was never recovered and no official crime scene exists.[9] Now, thirty-five years later, Kathie’s family members have petitioned the Surrogate’s Court of New York County to declare Kathie dead as of January 31, 1982, as they believe Robert Durst may have had some involvement in her disappearance.[10] Kathie’s is currently declared an absentee, under a previous order of the New York Surrogate’s Court, but family and friends believe that Robert and Kathie engaged in a heated argument on the night of January 31, 1982, which led to Robert killing Kathie.[11]

As Kathie is an absentee, the court will await recommendation from the Guardian ad Litem, Charles Captenakis, who was appointed by the court in September 2016.[12] Once the Guardian Ad Litem’s recommendation is offered, the court will make a determination as to when Kathie should be declared dead and the appropriate date of death pursuant to Estate, Powers and Trusts Law (hereinafter “EPTL”) § 2-1.7.[13]

Robert is currently seventy-three years old and worth $100 million.[14] He was recently extradited to California, from New Orleans, where he was charged with weapons possession, where he is being charged with the murder of long-time friend, and alleged confidante, Susan Berman.[15] He allegedly killed Berman to prevent her from revealing information to the authorities relating to Robert’s role in Kathie’s disappearance.[16]

This is not Robert’s first interaction with the law; he was acquitted of murder in Galveston, Texas, despite admitting to killing and dismembering his neighbor, Morris Black.[17] Durst argued that it was done in self-defense.[18] The Jinx, a series produced by HBO, was released where Robert Durst admits to “killing them all,” in reference to Kathie and his other two victims.[19]

Where a petition has been made to the court to make a declaration of death, the EPTL § 2-1.7 governs the action. An absentee may be declared dead if for a period of three years or longer, she “has not been seen or heard from and her absence is not satisfactorily explained.” Should this be the case, the absentee will be declared “to have died three years after the date she went missing, or on an earlier date if such a date can be established through clear and convincing evidence as the most probable date of death”.[20] The EPTL also provides that if it can be proven that the absentee was exposed to a specific peril of death at the time of the disappearance, it may be a sufficient basis to establish that she died “less than three years after her absence commenced.”[21]

We now await the Guardian ad Litem’s recommendation to the court, and the courts determination of whether January 31, 1982, will be the day Kathie is declared dead. The decision by the court will determine whether a future action may be brought by Kathie’s family on her behalf, such as other civil litigation and the administration of Kathie’s estate. The recognition of January 31, 1982, as the date of death will help to bring justice and closure to Kathie’s family who has been without legal closure for thirty-five years.

[1] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[2] N.Y. Surr. Ct. Proc. Act § 403 (McKinney 1995).

[3] N.Y. Surr. Ct. Proc. Act § 404(1) (McKinney 1968).

[4] N.Y. Surr. Ct. Proc. Act § 404(2) (McKinney 1968).

[5] N.Y. Surr. Ct. Proc. Act § 404(3) (McKinney 1968).

[6] Matter of Aho, 39 N.Y.2d 241 (1976).

[7] Memorandum for Petitioner, In Re the Application of Ann C. McCormack, by her Special Guardian and Attorney-in-Fact Carol Bamonte, concerning the Estate of Kathleen Durst (2015) No. 1982-5053/D.

[8] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[9] Id.

[10] Id.

[11] Id.

[12] Order Appointing the Guardian Ad Litem, No. 1982-5053/D.

[13] N.Y. Est. Powers & Trusts Law § 2-1.7 (McKinney 2000).

[14] Complaint at 2-4, McCormack v. Durst, No. 1982-5053/D.

[15] Charles V. Bagli, Family Of Robert Durst’s First Wife Ask Court To Declare Her Dead, The New York Times (July 14, 2016), https://www.nytimes.com/2016/07/15/nyregion/family-of-robert-dursts-first-wife-asks-court-to-declare-her-dead.html?_r=0.

[16] Complaint, supra, note 14.

[17] Complaint, supra, note 14.

[18] Complaint, supra, note 14.

[19] Complaint, supra, note 14.

[20] N.Y. Est. Powers & Trust Law § 2-1.7(a) (McKinney 1996).

[21] N.Y. Est. Powers & Trust Law § 2-1.7(b) (McKinney 1996).

By Nicole La Grega, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In Fry v. Napoleon Cmty. Schs.,[1] the Sixth Circuit held that a parent must exhaust all requirements under the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C.S. §1415 before bringing claims against the school, its principal and the school district for violating the American with Disabilities Act (ADA) and Rehabilitation Act by refusing to permit a child from bringing a service dog to school.[2] The Plaintiff’s (the Frys) had a daughter (E.F.) who suffered from cerebral palsy; she had a service dog to assist her with everyday tasks such as using the bathroom and picking up dropped items.[3] E. F’s school provided her with a human aide to assist her in school pursuant to the Individualized Education Program (IEP) under the Individuals with Disabilities Education Act, (IDEA). However, the school refused to allow E.F.’s service dog to attend school with her.[4] The Frys sued alleging violations of the ADA and Rehabilitation Act and the State Disability Law.[5] The District court granted the defendant’s (Napoleon County Schools) motion to dismiss under Fed. R. Civ. P. 12 ( c ) claiming that the Frys had to exhaust all other administrative procedures under IDEA.[6] The Frys appealed, arguing that the IDEA exhaustion requirement does not apply to them because they did not seek the type of relief provided by IDEA procedures.[7]

The Fry’s decided to home school their daughter until they found a school that had no opposition to the service dog attending school with E.F. [8] The Frys claimed that because the school refused to allow the service dog to attend school with E.F. from Fall 2009 to Spring 2012, their daughter was denied an equal opportunity to access the school’s facilities and to interact with other students. [9] Furthermore, this refusal interfered with E.F.’s ability to form a bond with her service dog.[10] The Napoleon County Schools argued that IDEA’s exhaustion requirement applied to the Frys. The District Court agreed and granted the defendant’s motion to dismiss. The Fry’s appealed.[11]

The IDEA’s exhaustion requirement “calls for [a] highly fact-intensive analysis of a child’s disability and her school’s ability to accommodate her. The procedures ensure that the child’s parents and educators, as well as local experts, are first in line to conduct this analysis.”[12] The court discussed how exhaustion requirements are not required when the injuries do not relate to the free appropriate public education as defined by the IDEA, as well as when they cannot be remedied through the administrative process.[13]

The court discussed that the school already provided accommodations for E.F., but that the accommodation of having a human aide was not sufficient because it was not helping E.F. to learn to function on her own.[14] The Frys argued that by denying the service dog to attend school with E.F., the school was not “allowing them to form a bond,” as well as preventing the specific “psychological and social assistance” the service dog would provide E.F. with that the human aide could not.[15] Even though the school already provided accommodations for E.F., they are not the type of accommodations E.F. requires. E.F. needs to learn to be self-sufficient and having a human aid will not help this process.[16] The purpose of a service animal is to provide people specified help so they can get through everyday activities on their own in hopes to not require a human aid for their entire life.

The court held that IDEA was designed to address the specific harms that the Frys alleged in their complaint and that the Frys should have been able to obtain relief under IDEA if followed correctly.[17] Even though the Frys were seeking money damages that were unviable under the IDEA, this does not excuse the exhaustion requirement. [18]

On appeal, the Frys argued that the circumstances in their specific situation rendered the exhaustion requirement of the IDEA futile because the Frys were seeking monetary damages and that is unavailable under IDEA.[19] In addition, IDEA procedures would force the school to allow the service dog to attend the school, but E.F no longer attends the school.[20] The relief that the IDEA procedures would produce were not needed by the Frys anymore, making the exhaustion requirement a waste of time and money for the family. Therefore, pursuing a more direct method in court was a better alternative for the Frys. The Frys relied on the federal district court decision in Sullivan v. Vallejo City Unified Sch. Dist. to prove that the exhaustion requirement should not apply to their claim.[21] The court dismissed the Frys’ reliance on Sullivan, holding that the “logic does not hold.”[22] The court discussed that the logic from Sullivan would permit any ADA complaint stating that an accommodation would enhance the child’s educational opportunity, to allow for avoidance of the exhaustion requirement.[23] The Frys did not directly state that the service dog would enhance E.F.’s educational opportunities.[24] The Frys complaint stated that the service dog would help E.F. become more self-sufficient. The court stated that at a minimum an exhaustion requirement must apply when there is a denial of an accommodation. If the Frys did start the process of going through the IDEA requirements, they might have had a better outcome. E.F. attended school without her service dog for some time, and if her parents followed the IDEA procedures there is a possibility that the school would have allowed the service dog to attend school with E.F. Following the IDEA exhaustion requirements might be in the best interest of the child. The Court affirmed the lower court’s decision that IDEA requirements must be followed and exhausted first, therefore, the Fry’s’ appealed to the Supreme Court.

The implications of the exhaustion requirement on families with special needs children are tremendous. Going through all the requirements can be time-consuming, which could negatively impact the child’s learning experience. Also, the requirements could be costly on families. One of the major implications of this exhaustion requirement is that even after a family has exhausted all other options they still might not have the desired outcome that their child needs. If the child needs something other than what IDEA can provide him or her, the direct route, like what the Frys did, is the way to go. The needs of the child should always come first; especially when it comes to special needs children and their education.

[1] Fry v. Napoleon City. Schs., 788 F.3d 622,623 (6th Cir. 2015). Fry v. Napoleon City. Schs., was argued before the Supreme Court on October 31, 2016, and we are still awaiting a decision.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Fry, 788 F.3d at 623.

[7] Id. 

[8] Id. at 624.

[9] Id.

[10] Id.

[11] Fry, 788 F.3d at 624.

[12] Id. at 626.

[13] Id. See F.H. ex rel. Hal v. Memphis City Sch., 764 F.3d 638, 644 (6th Cir. 2014).

[14] Id. at 627.

[15] Id. at 629.

[16] Fry, 788 F.3d at 629.

[17] Id. at 630.

[18]Id. 

[19] Id.

[20] Id.

[21] Fry, 788 F.3d at 630-631. See Sullivan v. Vallejo City Unified Sch. Dist., 731 F. Supp. 947 (E.D. Cal. 1990).

[22] Id. at 631.

[23] Id. 

[24] Id.

By Mercedes Matias, J.D. Class of 2017 Touro Law Review Senior Staff Member

On August 30, 2016, in Brooke S.B. v. Elizabeth A.C.C,[1] the New York Court of Appeals held “[w]here a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing, as a parent, to seek visitation and custody,” effectively overturning the 25-year rule of Alison D., over nontraditional families.[2]

Decided in 1991, the holding in Alison D. v. Virginia M., stated that where there lacked a biological or legal relationship between the unmarried third-party partner and the subject child, as required under Domestic Relations Law § 70, the third-party lacked standing to seek visitation or custody regardless of the previous nurturing relationship between them.[3] The Court of Appeals further justified its position citing the constitutional rights of biological parents to be free from the imposition of third-party rights, which could “limit or diminish the right of the concededly fit biological parent to choose with whom her child associates.”[4] However, the Court of Appeals clearly stated that where a legal adoption or marriage of the parties existed, the nonbiological parent had standing to sue. Subsequent New York decision supported this holding over the next 20 years.[5]

In 2010 in the case of Debra H. v. Janice R.,[6] the Court of Appeals provided a glimmer of hope for nontraditional families. Debra H. and Janice R., a same-sex couple who prior to the marriage agreed to conceive a child.[7] Janice H. gave birth to the subject child after their civil union in Vermont.[8] Under Vermont Law, both Debra H. and Janice R. were considered the parents of the child. When the parties separated, Debra H.’s visits with the child were frustrated by Janice R. Debra H. petitioned for joint legal and physical custody. The New York Court of Appeals held that under the doctrine of comity, Vermont’s recognition of Debra H. as a “parent” conferred standing for her to petition for custody and visitation in the State of New York.[9] This case did not overrule Alison D. and did not resolve the lingering issues of nontraditional families who were unable to marry or seek formal adoptions of their children within the State of New York.

After Alison D. and Debra H., questions lingered: What happens to children who live in different homes, with loving adults who lack a formal legal arrangement? How can their interests be protected when their family structures are viewed as invalid? Brooke S B. has unlocked the door for nontraditional families. The limited nature of the holding identifies only partners that have mutually agreed to conceive and raise a child together.

Under this rule the non-biological, non-spouse, non-legal parent, a partner would fail to meet the threshold of the Brooke S.B., rule thus falling into the “nonparent” category. For example, if a committed couple disagreed if they should conceive a child, but the intended biological parent proceeded with insemination, and then prior to the birth the non-agreeing partner changed his or her mind, the now nonbiological parent would lack standing to sue in family court. This partner would also fail if the change of heart came after the child was born. Another example would be where a couple decided to conceive and raise a child but prior to the birth of the child they breakup, and a new party assumes the responsibilities and acts as the parent. This leaves partners at risk of losing their children if they fail to enter formal relationships recognized by the State. The court’s failure to impose a functional test for standing leaves petitioners and respondents without sure footing.[10]

The holding in Brooke S.B. is revolutionary because it gives the nonbiological parent a mechanism to gain standing but it has failed to provide a more inclusive rule recognizing the diverse configuration of families.

[1] Brooke S.B. v. Elizabeth A.C.C., 61 N.E. 3d 488 (N.Y. 2016).

[2] Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991).

[3] Id.

[4] Dom. Rel. Law § 70 (McKinney 1988); Alison D., 572 N.E. at 29.

[5] See Matter of Jacob, 660 N.E.2d 397 (N.Y.1995) (conferring standing to seek custody or visitation upon unmarried, non-biological partners—including a partner in a same-sex relationship—who adopted the child, even under the Courts restrictive definition of “parent”); see in Matter of Shondel J. v. Mark D., 853 N.E.2d 610 (N.Y. 2006) (holding that a nonbiological parent is estopped from denying paternity if the child detrimentally relied on that representation and the conferring of the third-party with standing equal to that of the biological parent).

[6] Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010).

[7] Id. at 186.

[8] Id.

[9] Id. at 196 (citing the definition of comity in Ehrlich-Bober & Co., Inc. v. University of Houston, 404 N.E.2d 726 (N.Y. 1980)).

[10] Brooke S.B., 61 N.E. at 488.