Second Department Joins the Third Department in Applying the Child of the Marriage Presumption to Same Sex Spouses

It was only a few weeks ago that the Third Department held, for the first time in New York, that a married same sex couple is entitled to the presumption that a child born during their marriage is a child of the marriage. Now, the Second Department has agreed.

In Matter of Joseph O. v Danielle B., the Second Department faced the same situation that the Third Department addressed in Matter of Christopher YY. v Jessica ZZ. Joseph O. sought to establish his paternity to a child born to Danielle and her wife, Joynell, by artificial insemination using Joseph’s sperm. Like in Christopher YY., Joseph expressly waived any right to seek to establish parental rights or visitation, yet went back on the deal and petitioned Family Court to be declared the child’s father and for visitation.

Danielle and Joynell moved to dismiss the paternity and visitation petitions, arguing that they, as married spouses, were entitled to the presumption of legitimacy, that their child born via artificial insemination was a child of their marriage.  But Family Court held that Joseph had shown enough proof that he was the child’s father that the burden shifted to Danielle and Joynell to show it was not in the best interests of the child to do paternity testing or to declare Joseph the child’s father. Family Court also held that questions of fact existed whether equitable estoppel should bar Joseph from asserting paternity because Danielle and Joynell had permitted him to visit the child three or four times per year.

On appeal, the Second Department began its opinion discussing the irrebuttable statutory presumption of legitimacy that Domestic Relations Law § 73 attaches when a couple has a doctor perform the artificial insemination. Because that wasn’t the case here, the Court held that Danielle and Joynell weren’t entitled to the statute’s irreuttable presumption and couldn’t establish their parentage under section 73. That, however, wasn’t the end of the inquiry. The Court held instead, “Domestic Relations Law § 73 was not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”

Turning then to the common law presumption of legitimacy, and relying heavily on the Third Department’s decision in Christopher YY., the Second Department too held that Danielle and Joynell were entitled to the rebuttable presumption that the child born during their marriage was legitimate. Although the Court declined to prescribe what proof would be necessary to rebut the presumption, much like the Third Department did, the Court held that the paternity petition should be dismissed based on equitable estoppel. Joseph agreed to give up his rights, didn’t establish a parenting relationship with the child, and his few visits over 3 years didn’t undermine Danielle’s and Joynell’s parental roles. So, the Court held, Joseph can’t now assert that he is the child’s parent.

Like Christopher YY., this is a significant win for LGBT rights, especially in the important Family Law arena. What’s more, because the Second and Third Departments now agree that the child of the marriage presumption applies to married same sex couples, it’s even less likely that the Court of Appeals will need to address this issue. Because of an old New York rule that makes an Appellate Division decision binding statewide—not just in the Department in which the trial courts sit—until a conflict among the Departments emerges, the now settled Appellate Division precedent already applies throughout the State and is binding in all Family Court proceedings. Unless the Court of Appeals is keen to take on the issue simply to affirm the settled Appellate Division rule, which I think it would given Judge Abdus-Salaam’s monumental decision in Matter of Brooke S.B. v Elizabeth A.C.C., it would take either the First or Fourth Departments disagreeing and creating a conflict for the Court of Appeals to weigh in.

The law in New York now stands firm: same sex couples have the same right to a presumption that their children are legitimate that opposite sex couples always had. And that’s the way it should be.

The Appellate Division, Second Department’s decision can be found here.

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