“Throuple”: A Case of Polyamorous Custody

An interesting decision out of Suffolk County recently established custodial rights of a non-biological parent who was part of a polyamorous relationship. In Dawn M. v. Michael M., the court essentially affirmed the validity of a non-traditional family composed of two women and one man.

Though their names have been revealed in the media, for our purposes we will call the family members Mom 1, Mom 2, Dad, and Child.

Mom 1 and Dad were a married couple who had attempted to conceive with great difficulty. They utilized in vitro fertilization, but unfortunately Mom 1 miscarried. It was after this that the couple befriended Mom 2, who eventually moved into the lower level of the duplex that Mom 1 and Dad occupied. The three grew close and eventually came to consider themselves a family. Mom 2 moved into the upstairs flat a short time later.

After some discussion, the trio decided to go back to the infertility doctor in order to inseminate Mom 2 with Dad’s sperm—but the doctor refused to take part because Dad and Mom 2 were not married. So they decided to do it the old-fashioned way.

Nine months later, Child was born. As the Court noted, the three adults shared parenting responsibilities, and as Child grew up he regarded all three as his parents. When things soured between Mom 1 and Dad, Mom 1 filed for divorce. Realizing that she had no legal rights to be with Child, she filed suit against Dad for custodial rights. It should be noted that Child was now 10 years old. Mom 1 and Mom 2 were living together with Child, and Mom 2 had no objections to Mom 1 establishing custodial rights.

The Court ruled in favor of Mom 1, noting:

…in all respects, during the first eighteen months of [Child’s] life when defendant, plaintiff and [Mom 2] all lived together, and thereafter, plaintiff acted as a joint mother with Mom 2 and that they all taught the child that he has two mothers. In fact, the credible evidence establishes that when [Child] had an ear operation at age two, the defendant told the nurse that both plaintiff and [Mom 2] were [Child’s] mother so that both could be with him in the recovery room.

Furthermore:

Pursuant to DRL § 70, a parent may apply to the court for custody based solely upon what is for the best interest of the child, and what will promote his welfare and happiness. DRL § 240 also requires that in any proceeding for divorce, the court “shall enter a custody order having regard to the circumstances of the case and of the respective parties and to the best interests of the child….” The Court of Appeals in Brooke S.B. stressed that its decision 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 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 (28 NY3d at 28).[FN6]

The end result was an order granting shared custody of Child and providing Mom 1 with parenting time with Child every Wednesday for dinner, a week-long school recess and two weeks each summer.

An interesting addendum to this case can be found in US Supreme Court Chief Justice John Roberts’ dissent in the landmark decision that affirmed marriage equality. In Obergefell v. Hodges. Roberts imagined a slippery slope if same sex couples were allowed to marry and asked the question “…why wouldn’t the same reasoning apply to a family of three or more persons raising children?” Roberts could only see the breakdown of the family by imagining a child being raised and loved by more than 2 legal parents. Fortunately, the New York court was able to see how recognizing all types of families can serve a child’s best interests.

If you are seeking to creatively resolve your traditional or non-traditional family issues in a non-adversarial manner, contact us.

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