New York has a strong policy in favor of
legitimacy. Matter of Anonymous, 74 Misc.2d 99, 104, 345 N.Y.S.2d 430
[1973]. At common law there is a
rebuttable presumption that the child, a child born to a married woman, is the
legitimate child of both parties. Matter of Findlay, 253 N.Y. 1, 7, 170 N.E.
471 [1930]. The presumption that a child born to a marriage is the legitimate
child of both parents ‘is one of the strongest and most persuasive known to the
law.” State of New York ex rel. H. v. P., 90 A.D.2d 434, 437, 457 N.Y.S.2d 488
[1982]; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930].
The presumption of legitimacy as
codified in Domestic Relations Law §24 is that a child “born of parents who
prior or subsequent to the birth of such child shall have entered into a civil
or religious marriage, or shall have consummated a common-law marriage where
such marriage is recognized as valid”, is the legitimate child of both birth
parents. See also Family Ct Act § 417.
In Matter of Maria-Irene D. (Carlos A. v.
Han Ming.), 153 A.D.3d 1203, 1205 (1st Dept., 2017) the Appellate Division,
first department held that the “presumption of legitimacy”, applies to a child
born to a same-sex married couple. There the court applied the presumption of
legitimacy to a married gay male couple, one member of whom wanted to vacate
the adoption of their child by the other man’s new partner.
In
Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op
00495, *5-6 (3d Dept., 2017) the Third Department held that the “presumption of
legitimacy” applied to a a married lesbian couple and that, therefore, a
paternity petition filed by the male sperm donor must fail. The court pointed
out that typically the presumption is rebuttable in the law” 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 at 1217. In cases involving
opposite-gender spouses, the rebuttal happens, for instance, with “proof that a
husband did not have ‘access to’ his wife at the time that she conceived a
child and he acknowledged that he was not the biological father, combined with
testimony that the child was conceived during a trip with the putative father
with whom his wife was in a monogamous relationship,” citing Matter of Beth R.
v. Ronald S. But applying case law on rebuttal to same-gender spouses is
“inherently problematic, as it is not currently scientifically possible for
same-gender couples to produce a child that is biologically the product of the
marriage,” and the “changing legal and social landscape requires reexamination
of the traditional analysis governing the presumption of legitimacy.”
In Matter of Joseph O. v Danielle B.
,2018 NY Slip Op 01192 (2d Dept., 2018) the Appellate Division, Second
Department observed that it is an established legal presumption that every
child born during a marriage is the legitimate child of both spouses (see
Domestic Relations Law § 24[1]; Family Ct Act § 417) and that the respondents
correctly contended that because the child was conceived and born to the
lesbian respondents during their marriage, there was a presumption that the
child is the legitimate child of both respondents (see Domestic Relations Law §
24[1]; Family Ct Act § 417; Matter of Christopher YY. v Jessica ZZ., _____ AD3d
_____, 2018 NY Slip Op 00495, *5-6; Matter of Maria-Irene D. [Carlos A.-Han
Ming T.], 153 AD3d 1203, 1205). The presumption of legitimacy is rebuttable
(see Matter of Findlay, 253 NY 1, 7), and thus its application alone did not
warrant the summary denial of a paternity petition brought by the sperm donor.
However, the Appellate Division found that the respondents were entitled to
dismissal of the paternity petition on the ground of equitable estoppel and it
was not necessary to determine if the presumption of legitimacy was rebutted.
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