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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents

Tuesday, June 03, 2008

Husband Deemed Legal Parent Even though AID Consent Not in Writing

Husband Deemed Legal Parent of Child Born to Wife Conceived as Result of AID Where Consent Not Obtained in Writing


In Laura WW v Peter WW, --- N.Y.S.2d ----, 2008 WL 991130 (N.Y.A.D. 3 Dept.) the Third Department held that a husband can be deemed the legal parent of a child born to his wife, where the child was conceived as a result of artificial insemination by donor during the marriage, but where the husband's consent to the AID was not obtained in writing. Plaintiff wife became pregnant again, as a result of AID, with a third child. A few months into the wife's pregnancy, the parties separated pursuant to an agreement which provided, among other things, that the husband would not be financially responsible for the child. In her subsequent complaint for divorce, the wife alleged that the child was born to the marriage. The parties then entered a settlement agreement which reaffirmed the terms of the separation agreement and calculated the husband's support obligation based on two children. Thereafter, Supreme Court found that the provision in the separation agreement absolving the husband of his support obligation for the child was void as against public policy. Following a hearing on the issue of paternity, Supreme Court held that the husband was the child's legal father and modified the parties' stipulation by increasing the husband's child support obligation based upon three children, instead of two. The Appellate Division affirmed. It agreed with Supreme Court that the provision of the settlement agreement absolving the husband of any support obligation with respect to the child was unenforceable. The parties' agreement, which preceded any determination of legal paternity, to leave the child without the husband's support could not stand (Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5 [2002]; see Harriman v. Harriman, 227 A.D.2d 839, 841 [1996] ). The Court rejected the husband's attempt to invoke noncompliance with Domestic Relations Law 73 as a bar to a finding that he was, legally, the child's father. Consistent with our state's strong presumption of legitimacy, as well as the compelling public policy of protecting children conceived via AID, the Court followed the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by AID, shifting the burden to the husband to rebut the presumption by clear and convincing evidence. It was not disputed that the husband was fully aware that his wife was utilizing AID to get pregnant. He proffered no evidence that he took any steps before the AID was performed to demonstrate that he was not willing to be the child's father. Under these circumstances, the court found that that the husband failed to rebut the presumption that he consented to bringing a third child into the marriage through AID. The evidence supported Supreme Court's conclusion that the husband consented to his wife's decision to create the child and that he was the child's legal father. Pursuing an alternative avenue, the Court reached the same result, finding that the facts also warranted application of the doctrine of equitable estoppel to preclude the husband from "seeking to disclaim paternity of the parties' child, whose best interest is paramount".

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