Parent, Child and Family - Custody - Order of Parentage - Conception Via Assisted Reproductive Technology - Tri-Parent Arrangement

Law Office of Brian Esser PLLC, Brooklyn (Brian K. Esser of counsel), Law Office of Melissa B. Brisman, New York City (Melissa B. Brisman of counsel), and Oleaga Law LLC, Portland, Maine (Janene Oleaga of counsel), for petitioners.

Introduction:

The instant petition is brought by three separate individuals, E.D., E.K. and R.N. (collectively the petitioners), all of whom seek to be adjudicated the lawful parents of Baby D.K.N. Baby D.K.N. was conceived through assisted reproductive technology (ART) with the physical participation of all three petitioners. The petition is brought pursuant to New York State Family Court Act, article 5-C (the article). The article provides an avenue for individuals to establish parentage for children conceived through gestational surrogacy agreements or ART. To this court's knowledge, this is a case of first impression, as this is the first petition brought under the article by three petitioners. However, despite the unique facts of this case, this petition is fundamentally similar to the scores of other petitions that were already adjudicated under the article. In concert with the court's oral decision of May 13, 2025, the court grants the petition in full after textual analysis of the article and review of relevant case law as applied to the facts at bar.

Factual and Procedural Background:

This matter was commenced by filing of the parentage petition (the petition) on [*2]January 24, 2025, and seeks a judgment and declaration of parentage pursuant to the article.

The petitioners reside together as a family unit and jointly planned to conceive a child through ART. Before the petition was filed, the petitioners commenced reproductive care from Dr. Briana Rudick, M.D., a licensed physician and board-certified reproductive endocrinologist. Thereafter, petitioner E.D. provided the gamete egg, petitioner R.N. provided the gamete sperm, and petitioner E.K. gestated the child. Petitioners provided the court with the statutorily required certification from Dr. Rudick, who attested to the means by which petitioner E.K. became pregnant.

At the time this matter was commenced, petitioner E.K. was already pregnant with Baby D.K.N. On XXXX XX, 2025, during the pendency of this matter, petitioner E.K. gave birth to the child.

Additionally, petitioner E.D. is married to nonparty M.R., who also lives with petitioners. M.R. stated that they^[FN1] do not "intend" to be a parent as defined by the article and do not wish to be included in these proceedings. However, because M.R. is married to E.D., M.R. is arguably a necessary party to{**88 Misc 3d at 505} the petition as per the article. (See Family Ct Act § 581-305; see also CPLR 1001 [a].) On April 29, 2025, petitioners moved this court by amended notice of motion seeking to waive joinder of M.R. pursuant to CPLR 1001 (b). Therein, petitioners stated that they support M.R.'s position and confirmed that they are the only "intended" parents of the child. (See Family Ct Act § 581-305; CPLR 1001 [b].)

The court held a hearing on May 13, 2025, on the motion to waive joinder and on the underlying petition. The court first heard testimony from all three petitioners as well as nonparty M.R. on the motion to waive joinder. Petitioners testified that they planned to bring a child into the world through ART with the intention that they would raise the child together in their shared home. The petitioners testified that they are the only intended parents of Baby D.K.N. M.R. testified that they do not intend to be a parent to Baby D.K.N. M.R. testified that they supported petitioner E.D.'s decision to conceive a child through ART and then parent that child with the petitioners. The court granted petitioners' motion to waive joinder of M.R., finding the factors set forth in the statute weighed in favor of allowing the action to proceed without M.R. as a party.^[FN2]

Subsequently, and for the reasons set forth below, the court granted the underlying petition, declaring petitioners the legal parents of the child.

Statutory and Common-Law Authority:

The article was first enacted in 2021 and revised in 2024 and 2025 by the New York State Legislature. The purpose of the article is to legally establish a child's relationship to their parent or parents when the child is conceived either through ART{**88 Misc 3d at 506} or gestational surrogacy. The article requires a streamlined factual and legal analysis. Case in point, the article requires the court to grant a petition on papers and without hearing if all necessary documentation is provided. (See Family Ct Act § 581-202 [c].) Notably, the article does not call for a best interest analysis, as is required by other statutes when adjudicating custodial or visitation rights.

The article does not specify the gender or maximum number of intended parents. In relevant part, section 581-102 (k) broadly defines an intended parent as "an individual who manifests the intent to be legally bound as the parent of a child" who is conceived through ART. (See Family Ct Act § 581-102 [k].) Similarly, subdivision (l) of the same section broadly defines a parent as a person with a "parent-child relationship created or recognized under this act or other law." (Family Ct Act § 581-102 [l].) Lastly, the article defines a participant in the proceeding as "an individual who either provides a gamete that is used in assisted reproduction [or] is an intended parent." (See Family Ct Act § 581-102 [m].) Section 581-201 (a) and (c) state that any "participant," as defined by the prior section, can commence a petition which seeks a judgment of parentage of a child conceived through ART. (See Family Ct Act § 581-201 [a], [c].)

Section 581-202 (a) and (b) establish basic procedural requirements, namely that the intended parent, parents or child reside in New York State and that the petition is verified. (See Family Ct Act § 581-202 [a], [b].)

Section 581-202 (c) sets forth the substantive requirements that must be met for a petition to be granted. The section requires "a statement from the gestating intended parent that the gestating intended parent became pregnant as a result of assisted reproduction," and "a statement from the gestating intended parent and [singular^[FN3]] non-gestating intended parent that the [singular] non-gestating intended parent consented to assisted reproduction pursuant to section 581-304 of this article." (See Family Ct Act § 581-202 [c] [2], [3].) Additionally, it requires "proof of any donor's donative intent." (Family Ct Act § 581-202 [c] [4].)

Where parties do not meet the requirements set forth in section 581-202 (c), such as where there is more than one non-gestating intended parent and/or where there is no donative{**88 Misc 3d at 507} intent, section 581-202 (f) provides an alternative means of adjudicating parentage proceedings by referring intended parents to section 581-303. (See Family Ct Act §§ 581-202 [f]; 581-303.) Section 581-303 provides that anyone "who provides gametes for, or who consents to, assisted reproduction with the intent to be a parent of the child with the consent of the gestating parent as provided in section 581-304 of this part, is a parent of the resulting child for all legal purposes." (Family Ct Act § 581-303 [a].) Section 581-304 requires that unmarried petitioners' intent be memorialized, stating that

"[w]here the intended parent who gives birth to a child by means of assisted reproduction is not a spouse, the consent to the assisted reproduction must be in a record in such [*3]a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together." (Family Ct Act § 581-304 [b].)

Conversely, "[w]here the intended parent who gives birth to a child by means of assisted reproduction is a spouse, the consent of both spouses to the assisted reproduction is presumed and neither spouse may challenge the parentage of the child, except as provided in section 581-305 of this part." (Family Ct Act § 581-304 [a].) In section 581-305, the article further discusses the marital presumption without the specificity of section 581-304. Section 581-305 states generally that "[n]either spouse may challenge the marital presumption of parentage of a child created by assisted reproduction during the marriage unless the court finds by clear and convincing evidence that one spouse used assisted reproduction without the knowledge and consent of the other spouse." (Family Ct Act § 581-305 [a].)

After the aforementioned requirements are met, section 581-202 (g) states that the court is directed to issue a judgment of parentage, declaring that the petitioner or petitioners are the child's legal parent or parents, and ordering the parent or parents to immediately "assume responsibility for the maintenance and support of the child." (Family Ct Act § 581-202 [g] [2].) The section further requires the child's birth certificate to be amended to reflect the parties listed on the judgment of parentage. (See id. § 518-202 [g] [4].)

As this is a case of first impression involving a relatively new law, all prior case law regarding the legal rights of more than two parents provides a guide for this court and is not dispositive.{**88 Misc 3d at 508} Most other relevant case law involves the interpretation of the New York State Domestic Relations Law, which "covers . . . the custody and wages of children; the Uniform Child Custody Jurisdiction and Enforcement Act; the appointment of guardians; adoption," and does not cover parentage after the use of ART.^[FN4] (Scope of Statute, NY CLS, Domestic Relations Law.) Through Domestic Relations Law § 70, over the past decade, New York State courts increasingly supported custody and visitation for three parents.

In 2016, in Matter of Brooke S.B. v Elizabeth A.C.C., the New York State Court of Appeals held that "where 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 to seek visitation and custody under Domestic Relations Law § 70." (28 NY3d 1, 14 [2016].) On its face, Brooke S.B. is not applicable to the facts at bar, as it involved only two parents and Domestic Relations Law § 70. However, in a footnote, the New York State Court of Appeals stated that Domestic Relations Law § 70 limits custody and visitation rights to two parents. (See Matter of Brooke S.B., 28 NY3d at 18 n 3.) The Court stated that "by the use of the term 'either,' the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time." (Id., citing Domestic Relations Law § 70.)

In Dawn M. v Michael M., the New York State Supreme Court took a more expansive view of Domestic Relations Law § 70. (55 Misc 3d 865 [Sup Ct, Suffolk County, Mar. 8, 2017].) In Dawn M., the court determined that any party, regardless if there are already two custodial parents, can "apply to the court for custody." (Id. at 868.) The success of a petition for custody or visitation is based "solely upon what is for the best interest of the child, and what will promote [*4]his welfare and happiness." (Id. at 868-869.) Through this holding, the court purposefully did not take a textual approach in determining how many people could have custody or visitation of a child and granted{**88 Misc 3d at 509} "tri-custody" to the plaintiff after assessing that the same is in the child's best interest.^[FN5] (Id. at 870.)

In making this determination, the court also clarified Brooke S.B.'s holding, stating that it "only addressed the ability of a person who was not a biological or adoptive parent to establish standing as a parent to petition for custody and visitation," and did not address the limiting footnote. (Id. at 869.) The court stated that in Brooke S.B., the Court of Appeals championed using a best interest analysis, indicating that "the ultimate determination of whether to grant those rights rests in the sound discretion of trial courts in determining the best interests of the child." (Id.) Lastly, the court found that "tri-custody is the logical evolution of the Court of Appeals' decision in Brooke S.B., and the passage of the Marriage Equality Act and Domestic Relations Law § 10-a which permits same-sex couples to marry in New York." (Id. at 870.)

In Matter of David S. v Samantha G., the New York County Family Court again addressed Domestic Relations Law § 70's ability to grant custody and visitation to a party where a child already has two legally recognized parents. (See 59 Misc 3d 960 [Fam Ct, NY County, Apr. 10, 2018].) The court analyzed the facts at bar^[FN6] through the framework set by Domestic Relations Law § 70 and further interpreted by Brooke S.B. Therein, the court took an even more expansive view of Domestic Relations Law § 70 and held that foremost, the statute "must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a nontraditional family structure." (Id. at 966.) The court applied this best interest analysis and found that on the facts presented, the third parent had standing to seek custody or visitation of the child.

The court also highlighted the fact that footnote three of Brooke S.B., which limited custody and visitation to only two parents, was "contrary to the spirit of the [underlying] decision," which advocated using the best interest analysis. (Id. at 966 n 2; see also Brooke S.B., 28 NY3d at 18 n 3.) The court also highlighted that the aforementioned footnote is only dicta,{**88 Misc 3d at 510} and therefore "is not required to be followed." (Matter of David S., 59 Misc 3d at 966 n 2, citing Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, 124 [2d Dept 2006].) Interestingly, the court clarified that it "is not, however, granting Mr. T. an order of parentage," as a petition was not filed seeking that right. (Matter of David S., 59 Misc 3d at 968.) The court stated "that there is not currently any New York statute which grants legal parentage to three parties, nor is there any New York case law precedent for such a determination."^[FN7] (Id. at 968.) In making this decision, the court stated that with the use of ART [*5]by same-sex couples, "[i]t is worth noting that the situation before the court—where three parties are involved in raising a child—is likely to recur." (Id. at 966.)

Analysis:

A simple application of the article to the facts of this case requires a granting of the petition. The court will first address some foundational definitions under the article. The court finds that each petitioner constitutes an "intended parent" pursuant to section 581-102 (k), as each petitioner manifested their intent to be legally bound as the parent of the child resulting from assisted reproduction. (See Family Ct Act § 581-102 [k].) Moreover, each petitioner also constitutes a "participant" pursuant to section 581-102 (m), as E.D., R.N. and E.K. are intended parents, as previously defined, and E.D. and R.N. provided gametes used in the assisted reproduction. (See Family Ct Act § 581-102 [m].)

Family Court Act § 581-201 (a) and (c) allow a petition for a judgment of parentage of a child conceived through ART to be initiated by a "participant." (Family Ct Act § 581-201 [a], [c].) As established above, because the petitioners here are "participants" as defined by the article, the court finds the petitioners have standing to bring and maintain this action. Further, the court finds that the requirements of section 581-202 (a) and (b) are met insofar as the intended parents reside together in Kings County, New York and the petition was verified by each of the petitioners. (See Family Ct Act § 581-202 [a], [b].)

The court's analysis continues to section 581-202 (c) for a determination of parentage. (See Family Ct Act § 581-202 [c].) The court finds that it cannot adjudicate the petitioners to be the parents of the child pursuant to section 581-202 (c) because{**88 Misc 3d at 511} not all of the requirements under this subdivision are met. Specifically, section 581-202 (c) (3) refers to a singular non-gestating intended parent and requires a statement that such singular non-gestating intended parent consented to the assisted reproduction. (See Family Ct Act § 581-202 [c] [3].) In the case at bar, there are two non-gestating intended parents, so it does not fit squarely within section 581-202 (c) (3).

Additionally, the requirement under section 581-202 (c) (4) is not met, as it requires "proof of any donor's donative intent." (Family Ct Act § 581-202 [c] [4].) Here, there are no donors as identified by the article, which defines the same as "an individual who does not intend to be a parent who produces gametes and provides them to another person . . . for use in assisted reproduction." (Family Ct Act § 581-102 [d].) The individuals who provided the gametes in this assisted reproduction have manifested their intent to be parents of the child. As such, there are no donors with donative intent.

As this case is not covered by section 581-202 (c), section 581-202 (f) requires the court to adjudicate the parentage of the child in accordance with part 3 of the article. (See Family Ct Act § 581-202 [f].) Accordingly, the court shifts its analysis to section 581-303, which provides that anyone "who provides gametes for, or who consents to, assisted reproduction with the intent to be a parent of the child with the consent of the gestating parent as provided in section 581-304 of this part, is a parent of the resulting child for all legal purposes." (Family Ct Act § 581-303 [a].)

As required by section 581-304, E.K., E.D. and R.N. all memorialized their mutual agreement to conceive Baby D.K.N. through assisted reproduction with the intent to be a parent of the child in affidavits. (See Family Ct Act § 581-304.) As such, the court finds that each of the petitioners squarely fits into the plain language of section 581-303. (See Family Ct Act § 581-303.) Consequently, the court adjudicates the petitioners as legal parents of the child and issues a judgment of parentage in their favor.[*6]

Lastly, the marital presumption of parentage attaches to M.R., as the article states that where an intended parent is a spouse, such as E.D., neither spouse, such as M.R., may challenge the marital presumption of a child born through ART during a marriage. (See Family Ct Act § 581-305 [a].) The marital presumption of parentage indeed exists, and any implications that may flow from such presumption are understood by{**88 Misc 3d at 512} the petitioners and M.R. who were fully allocated on the same. The legislature laid out a narrow series of exceptions to the marital presumption, none of which apply.^[FN8]

Despite the fact that the marital presumption attaches to M.R., the court granted their motion to waive joinder as to M.R. As guided by CPLR 1001 (b), the court found that M.R. is not prejudiced by not joining the action, as they stated that they do not wish to be adjudicated the parent of Baby D.K.N. Moreover, the petitioners or Baby D.K.N. are not prejudiced as they can pursue rights they have by virtue of the marital presumption at a later date regardless of M.R.'s nonparticipation in this proceeding. Accordingly, the court takes no position on M.R.'s status as a parent of Baby D.K.N. at this time.

Conclusion:

In each case that comes before this court, we are charged with the heavy responsibility of evaluating parties' legal issues and related facts; this court is further responsible for analyzing applicable legislation, and interpreting it based on the text itself, through prior decisions by sister courts, and other related statutes. This court takes each of the aforementioned steps without regard to political and societal pressure.

Accordingly, after careful textual analysis, study of related decisions and statutes and assessment of the facts, it is hereby ordered the court grants this petition in full and an order of parentage will follow as necessary. Baby D.K.N.'s birth certificate will be amended as needed to reflect the three parents' names listed in alphabetical order.

"1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder; 2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined; 3. whether and by whom prejudice might have been avoided or may in the future be avoided; 4. the feasibility of a protective provision by order of the court or in the judgment; and 5. whether an effective judgment may be rendered in the absence of the person who is not joined." (CPLR 1001 [b].)