‘Presumption of Legitimacy’ of a Child in Same-Sex Marriages

Gay Male Couple Pushing Children In Buggy Through Woods

In 2017,  the Appellate Division, First Department, in New York became the first state appeals court to recognize that there is a “presumption of legitimacy” to a child born to a married same-sex male couple, i.e.,  the couple has the same parental rights that biological parents have.  Recently,  another appeals court in New York similarly recognized that there is a “presumption of legitimacy” involving a same-sex lesbian couple. These rulings are landmarks in New York jurisprudence as they beg the New York legislature to resolve the confusion regarding the Family Court Act , relative to the biological considerations that this issue presents. They also significantly change Black’s Law Dictionary’s definition:

‘Presumption of legitimacy’ also termed ‘presumption of paternity’  is a presumption that the father of a child is the man who (1) is married to the child’s mother when the child was conceived or born (even though the marriage may have been invalid), (2) married the mother after the child’s birth and agreed either to have his name on the birth certificate or to support the child, or (3) welcomed the child into his home and later held out the child as his own.

On January 25th, 2018, the Appellate Division, Third Department, in New York, ruled that a married same sex couple have a “presumption of legitimacy”

In this case, the father of a child conceived via artificial insemination of a married lesbian sought custody of the child. The court agreed with the lesbian couple, who argued “that since the child was born to the mother while they were married, they are entitled to the ‘presumption of legitimacy’ afforded to a child born to a marriage.”

This presumption is rebuttable, however,

upon clear and convincing evidence excluding the [spouse] as the child’s [parent] or otherwise tending to prove that the child was not the product of the marriage. quoting Matter of Beth R. v. Ronald S., 149 A.D.3d 1216, 1217.

But the fact that the married lesbian couple was of the same gender creates a problem as they cannot biologically produce a child, and since the state legislature has not provided for this situation,  the court decided that

[T]he presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents. Christopher YY. v. Jessica ZZ., No. 522068, 2018 WL 541768, at *4 (N.Y. App. Div. Jan. 25, 2018).

Further Reading:

Angela Ruffini, Who’s Your Daddy?: The Marital Presumption of Legitimacy in the Modern World and its Application to Same-Sex Couples. 55 Family Ct. Rev. 307 (2017). (link goes to Westlaw)

Jessica Feinberg, Whither the Functional Parent: Revisiting Equitable Parenthood Doctrines in Light of Same-Sex Parents’ Increased Access to Obtaining Formal Legal Parent Status, 83 Brook. L. Rev. 55 (2017)

Merle H. Weiner, A Parent-Partner Status for American Family Law (2015). –  Call # KF540 .W445 2015

Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589 (2018).

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