H.M. v. E.T.

OPINION OF THE COURT

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 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.

On March 6, 2007, E.T. appeared with counsel before the Support Magistrate. H.M., proceeding pro se, appeared by telephone.

The Support Magistrate indicated that H.M.’s petition had to be determined pursuant to New York law. The Support Magistrate also indicated that under the “unusual” circumstances presented, the application would be treated as a “paternity petitio[n].” At that point, E.T.’s counsel made an oral motion to dismiss the petition, arguing that it would be impossible for the Family Court to determine that E.T., a female, was “the father” of the subject child.

After entertaining argument from H.M., the Support Magistrate advised the parties that the motion would be granted. In support of that determination, the Support Magistrate found that under the present law of this state, there was no basis upon which the Family Court could adjudicate E.T. a parent of the subject child and require her to pay child support. In this regard, the Support Magistrate noted that E.T. was not the birth mother of the child or an adoptive parent of the child, never executed an official acknowledgment of parentage of the child, and was not in a legally recognized same-sex marriage or civil union with H.M. when she gave birth to the child. Indeed, the Support Magistrate, pointing out that the Family Court is a court of law with limited subject matter jurisdiction, found no provision in Family Court Act article 5, or in any other article of the Family Court Act for that matter, applicable to a controversy between a birth mother and another female concerning the other female’s parentage of a child. Finally, the Support Magistrate, deeming all of H.M.’s factual allegations to be true, and observing that equitable considerations might suggest that E.T. be adjudicated a parent of the child and required to pay child support, noted that the Family Court cannot grant equitable relief.

In an order dated March 7, 2007, the Support Magistrate, upon, in effect, granting E.T.’s motion to dismiss, dismissed the petition “due to there being no basis, under existing New York State [I]aw, under which an Order of Filiation could be issued against [E.T.].” Subsequently, H.M. submitted certain written objections to the Support Magistrate’s order, to which E.T. submitted a written response.

In an order entered September 11, 2007, the Family Court granted H.M.’s objections to the Support Magistrate’s order. In so doing, the Family Court observed that E.T. was neither a biological nor an adoptive parent of the subject child. However, the Family Court cited certain cases where courts “held individuals responsible for the support of a child even though they were not related to the child by biology or adoption.” (16 Misc 3d 1136[A], 2007 NY Slip Op 51711[U], *3 [2007].) The Family Court observed that in those cases, the courts applied the doctrine of equitable estoppel which, the Family Court noted, will be applied in order to protect the best interests of a child born out-of-wedlock. Thus, the Family Court concluded that “a paternity proceeding [can] proceed against a same sex partner if circumstances are established justifying the [doctrine’s] application.” (2007 NY Slip Op 51711[U], *5.) Then, the Family Court, noting that the subject child was born as a result of E.T.’s “promises,” concluded that H.M.’s allegations, if true, could support a finding that E.T. “should be estopped [from denying] her role as a person responsible to provide support for [that] child.” (Id.) Accordingly, the Family Court directed a hearing to determine whether E.T. “should be equitably estopped [from denying] her responsibility to provide support to the subject child.” (Id. at *6.)^*

E.T. appeals from the order of the Family Court granting H.M.’s objections to the Support Magistrate’s order. Although the order of the Family Court is not an order of disposition (see Matter of Kraft v Porter, 300 AD2d 660, 661 [2002]) and, hence, not appealable as of right, under the circumstances, we treat the notice of appeal as an application for leave to appeal, and grant leave (see Family Ct Act § 1112). Furthermore, because the Support Magistrate properly granted E.T.’s motion to dismiss the petition on the ground that the Family Court lacked subject matter jurisdiction to entertain H.M.’s application (see CPLR 3211 [a] [2]; see also Family Ct Act § 165 [a]), we reverse the Family Court’s order and reinstate the order of the Support Magistrate dismissing the petition.

Subject matter jurisdiction concerns a court’s competence to entertain a particular kind of application (see Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]; Lacks v Lacks, 41 NY2d 71, 75 [1976]; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]). A court’s power to entertain a particular kind of application is conferred by constitution or statute alone (see Matter of Fry v Village of Tarrytown, 89 NY2d at 718).

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 [1991]; 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 [2008]; Matter of Walker v Walker, 86 NY2d 624, 629 [1995]; Matter of Pearson v Pearson, 69 NY2d 919, 921 [1987]; Matter of Silver v Silver, 36 NY2d 324, 326 [1975]), 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 [1985]; Matter of Mouscardy v Mouscardy, 63 AD2d 973, 974-975 [1978]).

In the instant Family Court proceeding, H.M., never married to or in a civil union with E.T., seeks to have E.T., a woman having no biological or legal connection to the subject child, adjudicated a parent of that child and required to pay child support. An objection concerning subject matter jurisdiction having been made, we must examine the language of the Constitution and the Family Court Act to determine whether the Family Court is competent to entertain an application of this nature.

The Family Court received H.M.’s support application pursuant to UIFSA (see Family Ct Act § 580-305). UIFSA authorizes a proceeding for a determination of “parentage” (Family Ct Act § 580-301 [b] [6]; § 580-701), relief that H.M. sought. UIFSA provides that in deciding such a proceeding, the Family Court is required to apply the procedural and substantive law generally applicable to a “similar” proceeding originating in this state, and may only exercise whatever “powers” and provide whatever “remedies” that are “available” in such a proceeding (Family Ct Act § 580-303 [1]; see Family Ct Act § 580-701 [b]).

The only proceeding in this state “similar” to a proceeding for a determination of “parentage” is a proceeding pursuant to Family Court Act article 5. Yet, as the Support Magistrate recognized, Family Court Act article 5, entitled “Paternity Proceedings,” only provides a vehicle for resolving controversies concerning a male’s fatherhood of a child.

At common law, the father of a child born out-of-wedlock had no duty to support that child (see Feyler v Mortimer, 299 NY 309, 313 [1949]; Commissioner of Pub. Welfare v Koehler, 284 NY 260, 266 [1940]; People ex rel. Lawton v Snell, 216 NY 527, 532 [1916]). Family Court Act article 5, providing for paternity proceedings, represents the most recent legislative effort to mitigate the harsh effects of that rule (cf. Matter of L. Pamela P. v Frank S., 88 AD2d 865 [1982], affd 59 NY2d 1 [1983]; Feyler v Mortimer, 299 NY at 313). Consistent with that goal, the plain language of numerous provisions of Family Court Act article 5 clearly and unambiguously indicates that a proceeding thereunder will only involve a controversy concerning a male’s fatherhood of a child.

To illustrate, Family Court Act § 511 provides that the Family Court has “exclusive original jurisdiction” in proceedings to establish “paternity” (see also NY Const, art VI, § 13 [b] [5]; Domestic Relations Law § 111-b [3]), a term defined as the “state or condition of being a father” (Black’s Law Dictionary 1163 [8th ed 2004]). In addition, Family Court Act § 523 provides that in a proceeding pursuant to Family Court Act article 5, the petition must allege that the person named as the respondent, or the petitioner if the petitioner is a person alleging to be “the child’s father,” is “the father of the child” (see also Family Ct Act § 512 [d]). Furthermore, Family Court Act § 532 (a) authorizes the Family Court, in determining a proceeding pursuant to Family Court Act article 5, to order a genetic marker or DNA test to aid in the determination of whether “the alleged father” is or is not “the father of the child.” Finally, Family Court Act § 541 provides that a proceeding pursuant to Family Court Act article 5 will culminate in an order dismissing the petition if the Family Court finds that “the male party” is not “the father” of the child. If, on the other hand, the Family Court finds that “the male party” is indeed “the father” of the child, Family Court Act § 542 (a) requires the Family Court to issue an “order of filiation, declaring paternity.”

Our dissenting colleagues, opining that these statutory provisions can reasonably be interpreted to provide that a female can be adjudicated a parent of a child, would construe them in a manner permitting the Family Court to entertain H.M.’s application. According to the dissent, the provisions are susceptible of more than one reasonable interpretation because certain other provisions of the Family Court Act utilize “gender-neutral language” in referring to those who are liable for the support of a child.

However, many of the statutory provisions cited by the dissent are not part of the statutory scheme embodied in Family Court Act article 5. Being outside of that statutory scheme, they should not be viewed in conjunction with the provisions of Family Court Act article 5 (cf. Matter of Ador Realty; LLC v Division of Hous. & Community Renewal, 25 AD3d 128, 134 [2005]; McKinney’s Cons Laws of NY, Book 1, Statutes § 97). Indeed, some of the provisions cited by the dissent are part of Family Court Act article 4. Others are part of UIFSA, which, despite authorizing proceedings to determine “parentage” (Family Ct Act § 580-301 [b] [6]; § 580-701), still requires application of the substantive and procedural law generally applicable to proceedings pursuant to Family Court Act article 5 (see Family Ct Act § 580-303 [1]; § 580-701 [b]).

Although the dissent does cite certain provisions of Family Court Act article 5, those provisions are not germane to the issue at hand, that is, who can be adjudicated a parent in a proceeding pursuant to Family Court Act article 5. First, Family Court Act § 513, providing, in relevant part, that “each parent of a child born out of wedlock is chargeable with the support of such child,” does not indicate who can be adjudicated a parent, but rather, imposes a legal obligation. Similarly, Family Court Act § 515, providing, in relevant part, that a child shall be supported by a municipality “[i]n case of the neglect or inability of the parents” to do so, does not indicate who can be adjudicated a parent, but rather, imposes a legal obligation. Finally, Family Court Act § 522, providing, in relevant part, that a “person standing in a parental relation” to a child can commence a proceeding pursuant to Family Court Act article 5 “to establish the paternity of the child and to compel support,” does not indicate who can be adjudicated a parent, but rather, addresses the issue of who has standing to maintain a proceeding pursuant to Family Court Act article 5.

The dissent also concludes, as the Family Court did, that the availability of the doctrine of equitable estoppel, applicable in a proceeding pursuant to Family Court Act article 5 (see Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]; Matter of Sharon GG. v Duane HH., 95 AD2d 466, 468 [1983], affd 63 NY2d 859, 862 [1984]), warrants the denial of E.T.’s motion to dismiss. Pursuant to that doctrine, a party will be precluded from asserting a right if, by word or deed, that party led another party to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other party would result if the right was asserted (see Matter of Shondel J. v Mark D., 7 NY3d at 326).

H.M. has alleged that E.T. led her to believe that she would always act as a parent to the child she gave birth to, and acted as a parent to the subject child for a period of time after his birth. Assuming the truth of these allegations, as a court must do for purposes of deciding E.T.’s motion to dismiss (see Brown v State of New York, 89 NY2d 172, 176 [1996]), the dissent concludes, as the Family Court did, that the circumstances might warrant that E.T. be estopped from denying her parentage of the child. The dissent also concludes, as the Family Court also did, that estopping E.T. from denying her parentage of the child might be in the child’s best interests. Indeed, the reason for applying the doctrine of equitable estoppel in a proceeding pursuant to Family Court Act article 5 is to protect the best interests of the child (see Matter of Shondel J. v Mark D., 7 NY3d at 326).

Although the doctrine of equitable estoppel can be applied in a proceeding pursuant to Family Court Act article 5, when the Family Court applies the doctrine, the Family Court is merely precluding a party from “denying a certain fact” (Matter of McManus v Board of Educ. of Hempstead Union Free School Dist, 87 NY2d 183, 186 [1995]) because “[e]quitable considerations” so warrant (Matter of Behrens v Rimland, 32 AD3d 929, 931 [2006]). This is not the same thing as the Family Court granting equitable relief, something the Family Court lacks the power to do (see Matter of Brescia v Fitts, 56 NY2d 132, 139 [1982]). Hence, when the Family Court applies the doctrine, the Family Court is doing so as a means of granting relief specifically authorized by the Constitution or statute. That is, the Family Court is applying the doctrine as a means of adjudicating a “male” “the father” of a child (Family Ct Act § 542 [a]; see e.g. Matter of Nathalie N. v Jerome W., 29 AD3d 912, 912-913 [2006]; Matter of Griffin v Marshall, 294 AD2d 438, 438-439 [2002]), or as a means of declaring that a “male” is “not the father” of a child (Family Ct Act § 541; see e.g. Matter of Juan A. v Rosemarie N., 55 AD3d 827, 827-828 [2008]; Matter of Antonio H. v Angelic W., 51 AD3d 1022, 1023 [2008]; Matter of Greg S. v Keri C., 38 AD3d 905, 905-906 [2007]; Matter of John Robert P. v Vito C., 23 AD3d 659, 661-662 [2005]; Matter of Maurice T. v Mark P., 23 AD3d 567 [2005]; Matter of Ettore I. v Angela D., 127 AD2d 6, 12-16 [1987]; Matter of Sharon GG. v Duane HH., 95 AD2d at 468-469). Here, however, H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant. Under these circumstances, the Family Court cannot apply the doctrine, and necessarily cannot reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief.

The dissent also indicates that it has constitutional “doubts” and “concerns” about Family Court Act article 5 and our decision. In this regard, the dissent, without engaging in an equal protection analysis, suggests that rights to equal protection might be violated. However, this issue is not properly before this Court. Indeed, no constitutional claim was raised before, or considered by, the Support Magistrate or the Family Court (see Matter of Dowsett v Dowsett, 172 AD2d 610, 611 [1991]; see also Matter of Commissioner of Social Servs. v Segarra, 78 NY2d 220, 222 n 1 [1991]; Family Ct Act § 439 [e]). Furthermore, we note that notification has not been given to the Attorney General (see CPLR 1012 [b] [1], [3]; Executive Law § 71 [3]; cf. Gina P. v Stephen S., 33 AD3d 412, 415-416 [2006]; Matter of Weinberg v Omar E., 106 AD2d 448 [1984]).

Finally, the dissent voices a concern that our decision effectively deprives H.M., and others in her position, of a forum for the adjudication of her application. However, our holding that the Family Court lacks subject matter jurisdiction to entertain applications in the nature of H.M.’s application does not leave H.M. bereft of a forum for the adjudication of her application. This is because, under the circumstances, New York Constitution, article VI, § 19 (e) authorizes the Family Court to “transfer to” the Supreme Court—a court competent to entertain H.M.’s application (see NY Const, art VI, §§ 7, 13 [d])—“any . . . proceeding . . . over which” the Family Court “has no jurisdiction.” We note that Matter of Strom v Lomtevas (28 AD3d 779, 779-780 [2006]), a UIFSA case cited by the dissent involving a distinguishable situation where the Family Court had subject matter jurisdiction to entertain a particular application, does not indicate that UIFSA, which authorizes the Family Court in this case to exercise whatever powers it might exercise in a proceeding pursuant to Family Court Act article 5 (see Family Ct Act §§ 580-303, 580-701 [b]), prohibits the Family Court from transferring an application the Family Court receives pursuant to UIFSA but lacks subject matter jurisdiction to entertain.

In summary, we are sensitive to our obligation to liberally construe the provisions of Family Court Act article 5 (cf. Schaschlo v Taishoff, 2 NY2d 408, 411 [1957]), enacted by the Legislature to protect the welfare of children born out-of-wedlock (see Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5 [1983]). However, since, as discussed above, those provisions contain clear and unambiguous language indicating that a proceeding pursuant to Family Court Act article 5 is only a vehicle for resolving a controversy concerning a male’s fatherhood of a child (see e.g. Family Ct Act § 542 [a]), there is no occasion for construing those provisions (see McKinney’s Cons Laws of NY, Book 1, Statutes § 76; cf. Matter of Thomas S. v Robin Y., 209 AD2d 298, 307 [1994]) and, hence, no basis for interpreting them, in a manner permitting a proceeding pursuant to Family Court Act article 5 to be used as a vehicle for resolving some other type of controversy. If the failure of Family Court Act article 5 to provide a vehicle for resolving the type of controversy involved here is to be redressed, it is a matter to be undertaken by the Legislature—which “created” and “wholly controls]” paternity proceedings (Hough v Light, 275 App Div 299, 300 [1949])—and not the courts (cf. Langan v St. Vincent’s Hosp. of N.Y., 25 AD3d 90, 92, 95 [2005]).

Accordingly, leave to appeal from the order is granted, the order entered September 11, 2007 is reversed, on the law, the petitioner’s objections are denied, the order dated March 7, 2007 is reinstated, and the orders dated March 25, 2008 and February 9, 2009 are vacated.

* In an order of the Family Court dated March 25, 2008, issued after the hearing, the court concluded that E.T. was estopped from “deny[ing] her responsibility for [the subject child’s] support.” The court then adjudicated her a “parent” of the subject child “for that purpose.”

Subsequently, in an order of the Family Court dated February 9, 2009, E.T.’s monthly child support obligation was set. In addition, H.M. was awarded a particular amount of child support arrears.