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Dawn M. v. Michael M.

Supreme Court, Suffolk County

March 8, 2017

Dawn M., Plaintiff,
v.
Michael M., Defendant.

          Plaintiff's Attorney KAREN G. SILVERMAN, ESQ.

          Defendant's Attorney KENNETH J. MOLLOY, ESQ.

          Attorney for Child: THERESA MARI, ESQ.

          H. Patrick Leis III, J.

         Upon the reading of the following papers: (1) Plaintiff's Post Trial Memorandum received in this Court on January 13, 2017; (2) Defendant's Post Trial Memorandum received in this Court on January 17, 2017; (3) Attorney for the Child's Post Trial Memorandum received in this Court on January 13, 2017; and, (4) the Custody trial held in this Court on October 18, 19 and 26, 2016; and now, it is

         ORDERED that plaintiff is granted shared custody of J.M.; it is further

         ORDERED that plaintiff is granted visitation with J.M. every Wednesday for dinner, a week-long school recess and two weeks out of the summer as delineated in this decision and judgment.

         In this matter, plaintiff Dawn M., who is the non-biological, non-adoptive parent, asks the court to grant her "tri-custody" of defendant husband Michael M.'s ten-year-old biological son J.M.. [1] After denying defendant's motion for summary judgment, [2] this court ordered a trial to determine custody and visitation rights of the parties regarding J.M..

         The facts at trial established the following:

         Plaintiff and defendant were married on July 9, 1994. After being unsuccessful at attempts to have a child, the parties went to a fertility doctor. The plaintiff was artificially inseminated with defendant's sperm and conceived a child. Unfortunately, that child was miscarried at ten weeks gestation.

         In April of 2001, plaintiff met Audria G. (hereinafter referred to as "Audria") and they became close friends. Audria and her boyfriend moved into an apartment downstairs from plaintiff and defendant. When Audria's boyfriend moved out, Audria moved upstairs with plaintiff and defendant. Sometime in 2004, the relationship between plaintiff, defendant and Audria changed and the three began to engage in intimate relations.

         As time went on, Audria, plaintiff and defendant began to consider themselves a "family" and decided to have a child together. The parties and Audria went to the fertility doctor previously utilized by plaintiff and defendant with the hope that Audria could be artificially inseminated with defendant's sperm. The fertility doctor, however, refused to artificially inseminate Audria because she was not married to defendant. Thereafter, the parties and Audria decided they would try to conceive a child naturally by defendant and Audria engaging in unprotected sexual relations. The credible evidence establishes that it was agreed, before a child was conceived, that plaintiff, Audria and defendant would all raise the child together as parents.

         Audria became pregnant and J.M. was born on January 25, 2007. The evidence establishes that plaintiff's medical insurance was used to cover Audria's pregnancy and delivery, and that plaintiff accompanied Audria to most of her doctor appointments. For more than eighteen months after J.M.'s birth, defendant, plaintiff and Audria continued to live together. Audria and plaintiff shared duties as J.M.'s mother including taking turns getting up during the night to feed J.M. and taking him to doctor visits.

         As time went on, however, the relationship between defendant and plaintiff became strained. In October of 2008, Audria and plaintiff moved out of the marital residence with J.M.. A divorce action was commenced by plaintiff against defendant in 2011. Plaintiff testified credibly that after the divorce action was commenced, defendant no longer considered her to be J.M.'s parent. Prior to this divorce, a custody case was commenced by defendant against Audria. Defendant and Audria settled their custody proceeding by agreeing to joint custody; residential custody with Audria and liberal visitation accorded to defendant. [3] The plaintiff still resides with Audria and J.M., and sees J.M. on a daily basis. She testified that she brought this action to assure continued visitation and to secure custody rights ...


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