Although you may generally assert alternative legal theories in a case, the law does not usually allow arguing and establishing one position in one case and then asserting an opposite argument in a separate, later case. That tactic was tried by a woman in a same-sex custody case recently, and it led to her losing the case. The reported case is not a Connecticut child custody case, but the principles are instructive and influential here.
In a prior support proceeding, the natural mother sought support from her estranged female former partner. She argued that the woman had acted like a mother toward the child and should be held to a child support obligation. The court ordered the woman to pay child support. Later, the former partner filed for custody and visitation in the same court.
However, in response to the child custody petition filed in a New York family law court, the natural mother argued that the former partner was not a ‘parent’ for child custody or visitation privileges. She pointed to the New York Domestic Relations Law that defines a parent only in terms of a biological or adoptive relationship. The family law judge appeared visibly upset by the mother’s request to have the custody and visitation petition dismissed on those legal arguments.
The judge, who had issued the support order in the prior case, accused the mother of wanting to have her cake and eat it too. The court held that the mother was ‘estopped’ from arguing that the former partner was not also a mother. This was due to her factual and legal assertions in the support case that the former partner was indeed a legal mother of the child worthy of paying child support.
The court ruled that a party is judicially estopped from arguing and establishing a fact or legal proposition in a child support case and then trying to disavow that law or fact in a later child custody case. The case is one of the first to interpret the type of unique legal issues now arising under the revolutionary concepts of same-sex unions and marriages sweeping the country. Beyond this ruling, it appears that legislators and courts in Connecticut and nationwide are now called upon to redefine some of the traditional concepts still seemingly decisive in our statutes and case law.
Source: jdjournal.com, “Same-Sex Parent Bearing Child Support Can Seek Custody of Child,” April 20, 2013