Tri-Custody: The New Wave Of Custody And Visitation Arrangements Or An Unworkable And Erroneous Arrangement?

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.

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