WIN for LGBT Families: N.Y. Appellate Division Remands Gunn v. Hamilton for Equitable Estoppel Hearing in Co-Parent Contest

Eric Lesh
7 min readJul 2, 2018


By Brett Figlewski, Legal Director of The LGBT Bar Association.

This article appears in the Summer Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe:

After many months of anticipation, the N.Y. Appellate Division for the First Department issued a late Pride-month decision in the heavily-publicized case of In re K.G. v. C.H., 2018 N.Y. App. Div. LEXIS 4617, 2018 WL 3118937, 2018 N.Y. Slip Op 04683, known more generally as Gunn v. Hamilton. Justice Judith Gisch wrote for the unanimous five-judge panel.

The case had been one of the first in which the lower courts had applied the holding of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1 (2016), which was decided by New York’s highest appeals court in August 2016, shortly before this case was filed. Brooke S.B. broke new legal ground for New York by allowing for the possibility of standing in custody and visitation proceedings for non-biological/non-adoptive parents. Since the start of the Gunn%case, it has been featured in numerous general-audience media, including, especially, feature-length articles in the New York Times and The New Yorker; as such, the identities of the parties, Kelly Gunn and Circe Hamilton, and of the little boy at its center, Abush, are well known.

Kelly Gunn is represented by Kaplan & Company LLP (Roberta A. Kaplan and John C. Quinn), Morrison Cohen LLP (Dnaielle C. Lesser and Andrew P. Merten), an Chemtob Moss & Forman LLP (Nancy Chemtob and Jeremy J. Bethel). Circe Hamilton is represented by Cohen Rabin Stine Schumann LLP (Bonnie E. Rabin, Gretchen Beall Schumann, Tim James and Lindsay Pfeffer).

The LGBT Bar Association of Greater New York (LeGaL) was the sole amicus curiae in the case and was represented by the law firm of Latham & Watkins, LLP (Virginia F. Tent, Matthew J. Pickel, Iris H. Xie and Naseem Faquihi Alawadhi). LeGaL filed its amicus brief in support of neither party but rather in support of its understanding of the equitable principles undergirding Brooke S. B., and, in particular, for the application of an equitable test along the lines of what had been suggested to the Court of Appeals at oral argument in Brooke S.B. but which the Court of Appeals refrained from adopting at the time, while acknowledging its possible application in future cases with different facts. LeGaL, along with the law firm of Blank Rome LLP and Lambda Legal, had represented Brooke before the Court of Appeals.

Within days of the ruling in Brooke S. B., Ms. Gunn filed an action in Supreme Court, New York County, arguing that, although she was not the biological or adoptive mother of Abush, she had standing under the new precedent, and Ms. Hamilton, the child’s adoptive mother, was immediately prevented by the court from returning with the child to her native England until the issue could be litigated and resolved. This preliminary action by the court indicated the power of the change wrought by Brooke S.B. and also marked the beginning of lengthy proceedings in Gunn, which presented some of the complex factual and legal questions arising in the wake of Brooke S.B. and engendering robust discussion among practitioners, advocates, and community members alike regarding the scope of the precedent and, more broadly, just what it is that makes a parent a parent.

The parties began a romantic relationship in 2004 and, by 2007, they had an agreement to commence the process of international adoption to raise a child together. They initiated the application in February 2009, though it was solely Ms. Hamilton who was listed on the application in order to avoid the restrictions on international child adoption by same-sex couples. By the end of 2009, the parties’ romantic relationship had deteriorated, and the principal factual dispute in the case concerned whether the subsequent statements and actions of the parties indicated a continued desire by the parties to adopt and raise a child jointly despite the end of the romantic relationship, or whether Ms. Hamilton was intended to be the child’s single parent. Ms. Hamilton’s adoption of Abush was finalized in 2012, but, although permissible in New York State since the 1995 Court of Appeals decision in Matter of Jacob, 86 NY2d 651, there was no second-parent adoption by Ms. Gunn. Nonetheless, once the child was adopted, Ms. Gunn played a significant role in his life, and there is no dispute that the relationship between Ms. Gunn and Abush is a loving and affectionate one with extensive access time and significant undertaking on behalf of the child’s well-being. Whether this relationship is parental is what is disputed.

After a 36-day hearing on standing before Justice Frank Nervo, the court found that the pre-adoption agreement of the parties to raise a child together had not been “unabated,” and therefore, Ms. Gunn did not have standing for purposes of custody and visitation under the holding of Brooke S.B. In other words, the court found that there was no longer an agreement regarding joint adoption at the time Ms. Hamilton went forward with the adoption. Having found no standing, the court rejected Ms. Gunn’s attempt to introduce evidence going to the question of equitable estoppel.

In her opinion for the Appellate Division, Justice Gische reviewed the jurisprudence leading up to Brooke S.B.: in the opinion authored by the late Judge Sheila Abdus-Salaam, the Court of Appeals had overruled the precedent set in the 1991 case of Alison D. v. Virginia M., 77 NY2d 651, and reaffirmed in 2010 in the case of Debra H. v. Janice R., 14 NY3d 576, under which same-sex co-parents were deemed “legal strangers” to the child and thus lacked standing to seek custody or visitation. The statutory provision in question, Domestic Relations Law Sec. 70(a), states that “either parent” may petition the court for custody of a child, and it was Alison D., which established the “bright lines” of parentage based solely on biology or adoption.

Then-Chief Judge Judith Kaye’s dissent had foreseen that bright lines would fall most harshly on the children of “non-traditional” families, including LGBT families, and this concern, now highlighted by two and a half decades of impressive advancement in LGBT rights, including the affirmation of the equal dignity of LGBT families in the marriage equality cases, undergirded the Brooke S.B. holding: where it could be shown by clear and convincing evidence that parties had a pre-conception agreement to raise a child together, the non-biological/non-adoptive parent would have standing to seek custody and visitation.

Though the court in Brooke S.B. declined to adopt an estoppel test similar to that of other jurisdictions, the court explicitly recognized that, under different facts, different legal principles could be brought to bear to confer standing. Indeed, in the companion case to Brooke S.B., Matter of Estrellita A. v. Jennifer L.D, 27 N.Y.3d 987, the court affirmed that custodial standing could be conferred based on the doctrine of judicial estoppel, namely having been adjudged a parent in prior proceedings for purposes of child support. And the decision explicitly envisioned the doctrine of equitable estoppel as a potential means of establishing standing for a parent whose role in a child’s life had been facilitated and fostered by the biological or adoptive parent.

In Gunn, the Appellate Division now clarified a number of important aspects of the law as laid down in Brooke S.B. First, with respect to a pre-conception (or, in this case, a pre-adoption) agreement, the court did not find persuasive the argument that, once a plan is made, it is in effect in perpetuity, and rejected such a “sweeping interpretation”. Though the court did not draw a direct comparison, it is important to note that its reasoning means that a pre-conception or pre-adoption plan under Brooke S.B. is not equivalent to the genetic foundation for parentage in the moment of conception in heterosexual intercourse: “The purpose of Brooke is to protect parental relationships in nontraditional families, not to mechanically confer standing at a time when (and for children that) the parties never intended to co-parent,” wrote Justice Gische. Hence, the trial court permissibly determined that the parties’ mutual intention to raise an adopted child together did not survive the end of their romantic relationship and that Justice Nervo’s verbal formulation requiring an “unabated” plan was appropriate under Brooke S.B.

Second, the court affirmed the importance of the consideration of equitable estoppel in parentage cases brought under Brooke S.B. Though the Appellate Division declined to spell out what substantive factors are necessary to establish equitable estoppel, it unequivocally held that a full hearing on relevant factors was essential to any final determination of parentage, and so remanded the case to the trial court for a continued hearing on equitable estoppel. The court emphasized, in particular, the critical importance of assessing the best interests of the child by means of appointment of an attorney for the child or a forensic expert, or by conducting a Lincoln hearing, which is an in camera meeting of the judge with the child: “In New York State,” said the court, “even the youngest of children is entitled to have his or her point of view heard in cases involving custody and/or visitation. Thus, even a child as young as A. at the time of the hearing should have had his interests expressed to the court, separate and apart from those of the adult parties to the proceeding.”

The court’s focus on absence of the child’s voice from the record exemplified its understanding that equitable considerations must be paramount in any proceeding which purports to determine the best interests of a child. Its decision in Gunn empowers advocates for LGBT families to use estoppel as a powerful tool that mandates careful assessment of a child’s relationship with someone with whom strong emotional — and perhaps parental — bonds may have been formed.



Eric Lesh

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.