In March 2017, I noted that some courts had moved toward recognizing “unconventional” families, highlighting Dawn M. v. Michael M., a decision awarding tri-custody to a threesome who had agreed to conceive and raise a child together. But another New York court considering the same issue recently reached the opposite conclusion in Tomeka N.H. v. Jesus R. The decision in Tomeka N.H. shows how difficult it is for modern families to know which parental rights will be upheld by the courts. Until the Legislature addresses the issue, tri-custody will continue to be debated by the courts—leaving many families without the certainty they deserve.
In Tomeka N.H., the majority concluded that New York law “simply does not contemplate a court-ordered tri-custodial arrangement.” The opinion rests on a narrow, literal reading of Section 70 of New York’s Domestic Relations Law, which uses the word “either”; the majority reasoned that, since “either” has a limiting effect of not more than two, under New York law a child cannot have more than two custodial parents.
This narrow reading drew a passionate dissent from Judge Winslow, who contended that the majority’s decision “replicates the inequitable results caused” by decades old case law. Her dissent argued that by failing to consider the statutory text as well as the drafter’s intention, the majority failed fully to consider the damage caused to the child by severing family-like bonds. That damage, Judge Winslow argued, is exactly the harm that the Legislature sought to remedy.
The continued fracturing both between and within New York’s courts about the status of tri-custody makes it unclear which parental rights will be recognized for modern families. Until the Legislature speaks, we will continue to see erratic decisions that give families little certainty about the legal validity of their arrangements. Without intervention by the Legislature, nontraditional families will be left to make important decisions—decisions about their family—without basic knowledge of their rights.