A child is born to a married woman. Under New York law, the child is presumed to be a product of the woman’s marriage. The presumption can be rebutted, of course, but in the beginning, the law assumes that the children of married spouses are legitimate. That makes sense. New York’s policy is to keep families together, unless a different arrangement is clearly in the best interests of the children. Although New York cases have never before applied the child of the marriage presumption to same sex spouses, the rationale for its existence applies equally regardless of the married spouses’ gender. And that’s what the Appellate Division, Third Department held today for the first time.
In Matter of Christopher YY. v Jessica ZZ., Jessica, who was legally married to Nichole at the time, was inseminated in an informal procedure at home using Christopher’s sperm, which he had volunteered to donate. They drew up a contract (without legal advice) that said Christopher agreed to donate his sperm and to waive any claim to paternity of a child conceived or to visitation. In return, Jessica and Nicole agreed to waive any right to child support.
On the second try at insemination, Jessica became pregnant and had a baby girl. After her birth, the baby lived with Jessica and Nicole, and Jessica’s two other children, as a family. But after she was born, Christopher apparently had second thoughts. When the baby was about seven months old, Christopher filed a paternity petition, seeking a paternity test, and a separate petition for custody.
Under New York’s family law regime, the paternity petition almost automatically triggers a court-ordered paternity test and a hearing on what is in the best interest of the child. There is an exception, however. Family Court can decline to order the paternity test if it finds, in a written order, that the test “is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman” (Family Ct Act § 532[a]). That’s what Jessica and Nicole argued here. They claimed that the test should not be held because they, as married spouses, were entitled to the child of the marriage presumption, and that Christopher should be equitably estopped from going back on his agreement.
For the first time in New York, the Third Department held that same sex spouses are also entitled to the presumption that children born to married spouses are legitimate. As the Third Department put it,
As the child was born to respondents, a married couple, they have established that the presumption of legitimacy applies, a conclusion unaffected by the gender composition of the marital couple or the use of informal artificial insemination by donor (Opn, at 5-6).
Although the presumption applied, the Court held that that wasn’t the end of the inquiry. Because the presumption is a rebuttable one, the Court had to still decide whether Christopher had shown “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” (Opn, at 6). The law’s formulation for rebutting the presumption, the Court noted, is problematic for same sex spouses.
If the presumption of legitimacy turns primarily upon biology, as some earlier cases indicate, rather than legal status, it may be automatically rebutted in cases involving same-gender married parents. This result would seem to conflict with this state’s strong policy in favor of legitimacy, which has been described as one of the strongest and most persuasive known to the law. Summarily extinguishing the presumption of legitimacy for children born to same-gender married parents would seem to violate the dictates of the Marriage Equality Act (see L 2011, ch 95), which guarantees to such couples the same legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage as exist for different-gender couples (Opn, at 8 [cleaned up]).
So, the Court held, it is time to rework the standard to apply equally to everyone. But, the problem is, the Court didn’t know how that should work.
While a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, we believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the 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. If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification. The difficulty is in fashioning the presumption so as to afford the same, and no greater, protections (Opn, at 9).
Instead of articulating a general rule that could be applied in every case, the Court focused on the facts of this one, holding that Christopher had failed his burden to show that the baby girl was not entitled to the legal status of the product of Jessica’s and Nicole’s marriage. Thus, the Court held, the child of marriage presumption had not been rebutted and no paternity test should be given.
The Court alternatively based its decision on equitable estoppel, that the testimony at the best interests of the child hearing established that Christopher had waived his rights and responsibilities of parenting, and should not now be allowed to go back on that agreement. Indeed, Jessica and Nicole relied on his agreement and cared for the baby from her birth as a family. As the Court put it,
Having led respondents to reasonably believe that he would not assert – and had no interest in acquiring – any parental rights and was knowingly and voluntarily donating sperm to enable them to parent the child together and exclusively, representations on which respondents justifiably relied in impregnating the mother, it would represent an injustice to the child and her family to permit him to much later change his mind and assert parental rights (Opn, at 15).
This is a significant decision for LGBT rights in New York, though not necessarily a surprising one after the courts in New York have routinely offered the same protections and rights under the law to same sex couples as they previously did for opposite sex ones. We’ll see if this case heads to the Court of Appeals on the issue of first impression, but given the underlying facts that weigh heavily in Jessica’s and Nicole’s favors, and the alternative ground on which the Third Department based its decision, the Court may not yet need to address it.
The Appellate Division, Third Department’s decision can be found here.
New York Appeals 
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