Legal News

Same-Sex Parent Bearing Child Support Can Seek Custody of Child
Download PDF
1 Star2 Stars3 Stars4 Stars5 Stars (No Ratings Yet)

In a ruling published on Thursday, Suffolk County Family Court Judge Theresa Whelan held that a mother awarded child support by her former same-sex partner cannot argue that the former partner cannot seek custody of the child as she is legally not a parent.

In the instant case, Jennifer D., the biological mother of the child, had testified during child support proceedings that her former partner, Estrellita A., was a parent and was bound to pay support. Later, when Estrellita moved for custody of the child, Jennifer changed her stance and claimed that Estrellita cannot have custody as New York Domestic Relations Law applies the term “parent” only to biological or adoptive parents.


A visibly annoyed Judge Whelan observed, “Colloquially, this is known as ‘having your cake and eating it too … Judicially, it is referred to as ‘inconsistent positions,’ which this court will not countenance.”

Consequently, Jennifer’s bid to dismiss the custody motion was denied.

The ruling noted that Jennifer and Estrellita were registered as domestic partners. Jennifer gave birth to a girl in 2008. At the time, the couple discussed about Estrellita adopting the child, but adoption proceedings were not filed.

Get JD Journal in Your Mail

Subscribe to our FREE daily news alerts and get the latest updates on the most happening events in the legal, business, and celebrity world. You also get your daily dose of humor and entertainment!!

The couple separated in September with Jennifer filing a petition of child support from Estrellita. To obtain child support, Jennifer told the court that Estrellita was a parent to the girl-child Hannah and therefore had to live up to her responsibilities.

The support proceedings also took place before Judge Whelan, who declared Estrellita as a legal parent of the child and ordered her to pay child support.

Estrellita followed up with a petition for visitation and custody rights, but Jennifer opposed, arguing this time, in the same court, that Estrellita could not possibly be a legal parent of the child according to local law.

Observing that Jennifer was stopped from asserting that Estrellita was not a parent, Whelan wrote that except under extraordinary circumstances, under New York law, non-biological or non-adoptive parents cannot bring custody and visitation petitions.

However, during the earlier support proceeding, observed Whelan, Estrellita “not only performed as a parent, she was in fact a parent.”



Paralegal / Legal Assistant


Job Type Full-time Number of hires for this role 1 Qualifications High ...

Apply now

Litigation Paralegal


Thomas | Horstemeyer, LLP, an intellectual property boutique law firm located in Marietta, seeks a l...

Apply now

Associate Attorney - Personal Injury


We have an immediate opening in our Personal Injury Department for an attorney with 2 + years of exp...

Apply now


USA-AR-Little Rock

Sanford Law Firm seeks an experienced attorney to join a winning wage and hour law practice. Sanford...

Apply now




Search Now

Litigation Partner

USA-IA-Iowa City

Iowa City office of a BCG Attorney Search Top Ranked Law Firm seeks litigation partner with signific...

Apply Now

Litigation Associate Attorney

USA-LA-New Orleans

New Orleans office of a BCG Attorney Search Top Ranked Law Firm seeks a litigation associate attorne...

Apply Now

Investment Management Associate Attorney

USA-NY-New York City

New York City office of a BCG Attorney Search Top Ranked Law Firm seeks an investment management ass...

Apply Now

Most Popular


To Top