Reversing the ruling of an Onondaga County Family Court judge, the Appellate Division, Fourth Department, unanimously held that the judge's decision to grant temporary visitation rights to the woman "impermissibly impaired" the biological mother's right to custody of her child, who was conceived by artificial insemination when the women were a couple (Lynda A.H. v. Diane T.O., 0794/98).
The appellate justices dismissed a petition by a woman who sought custody or visitation with the child of her former partner.
The couple had lived together 17 years, had purchased a home together and had jointly saved for a "baby fund" when they agreed to have a child by artificial insemination. A daughter was born in September 1993 and was given both women's last names, and in February 1997, both parties filed a motion to allow the non-biological mother to adopt the child. The non-biological mother looked after the child while the mother returned to work and was called "omi" (for "other mommy") by the girl.
But when the couple's relationship ended, the mother revoked her consent to the adoption and Family Court Judge Bryan Hedges dismissed the motion for adoption. The non-biological mother then petitioned for custody or visitation, asserting that her absence from the girl's life was traumatic for the child. Judge Hedges denied the mother's motion to dismiss her former partner's petition and awarded the former partner temporary visitation.
In a decision written by Associate Justice David O. Boehm, the appellate justices ruled that Judge Hedges had erred because New York law has long held that a biological parent has superior right to custody over a non-parent unless the parent has relinquished the right through surrender, abandonment, neglect or unfitness.
"Further, petitioner, who is neither the biological nor adoptive parent, lacks standing to seek visitation of the child, who is properly in the custody of her biological mother," Justice Boehm wrote. "The award of temporary visitation to petitioner impermissibly impaired respondent's right to custody and control of the child."
Charles Roberts, Kidnapper of Shamema Honzagool Sloan
In addition to the obvious illegality of their kidnapping of the child, both the courts of New York (where the child was born) and the courts of Virginia have repeatedly ruled that persons such as Charles and Shelby Roberts lack standing to sue for custody. As a result, they should have immediately been arrested and their suit should have been dismissed and the child returned to the natural parents.