In a ruling that appears to buttress a landmark decision issued last fall on parental rights for same-sex couples, an upstate New York appeals court has decided that a married lesbian couple holds the “presumption of legitimacy”—which says that a child born during a marriage is presumed to be the two spouses’ child—and that, therefore, a paternity petition launched by the male sperm donor must fail.
A unanimous Appellate Division, Third Department, panel reversed a Chemung County family court judge’s 2015 ruling that denied the lesbian couple’s motion to dismiss the paternity petition while ordering that a genetic paternity test be performed.
“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,” the panel wrote in its decision issued Thursday.
It later added, “We discern no facts in this record on which to conclude that petitioner [the sperm donor] established, by clear and convincing evidence, that the child is not entitled to the legal status as ‘the product of the marriage,’” quoting Matter of Beth R. v. Ronald S., 149 A.D.3d 1216, 1217 (2017).
In writing that New York state’s family law “presumption of legitimacy” applied to the lesbian couple, regardless of “gender composition,” the panel cited, among other cases, Matter of Maria-Irene D. (Carlos A. v. Han Ming T.), 153 A.D.3d 1203, 1205 (2017). The Carlos A. v. Han Ming T. decision was issued last October by a unanimous Appellate Division, First Department, panel, which 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.
At the time, some gay-rights lawyers called the Carlos A. v. Han Ming T. decision a “landmark” because it was the first time a state appeals court had recognized that the presumption of legitimacy applied to a child born to a same-sex married couple. The decision was binding only on First Department courts, but it was thought that it could influence courts across the state as they addressed the “evolving law” of child-custody rights for married gay couples.
In lower state courts there has been division over the last decade about whether the “presumption of legitimacy” applies to same-sex married partners, Ming T.’s lawyers said at the time.
Thursday’s opinion in Matter of Christopher YY v. Jessica ZZ, 522068, is binding only within the Third Department but might also be influential elsewhere. Moreover, the panel addressed a “dilemma” that arose regarding the application of presumption-of-legitimacy law in the case, while pointing out that the disconnect in the law had not yet been taken up by the state Legislature.
In Matter of Christopher YY, the issue of whether the sperm donor, referred to only as Christopher YY, could rebut the presumption of legitimacy enjoyed by the married couple—named as Jessica ZZ and Nichole ZZ—came to the fore. Typically, the panel pointed out, 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,” the panel wrote, adding that the “changing legal and social landscape requires reexamination of the traditional analysis governing the presumption of legitimacy.”
The panel then ruled that, “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,” the panel continued, “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. With that said, we discern no facts in this record on which to conclude … that the child is not entitled to the legal status as the product of the marriage.”
Lisa Natoli of Natoli & Natoli in Norwich, New York, represented the wife of the biological mother of the unnamed child. In an interview Thursday, she said that the panel did a “fantastic” job moving forward a changing area of family law, and that its ruling meant that the presumption is “still rebuttable, but we’re not going to close the door” to same-sex married couples and their children.
“Given the way our law is evolving to keep up with society, more than just even protecting the rights of the same-sex spouses, this is about protecting the rights of children born to those marriages,” she said.
“And now, it is up to our courts—our courts are answering questions for us and for our children,” she continued. “It’s an evolving area of law, and it will continue to evolve.”
Pamela Bleiwas, an Ithaca, New York-based attorney representing the sperm-donor petitioner, could not be reached for comment. Ouida Binnie-Francis, an attorney in Elmira, New York, represented the mother of the child, and Michelle Stone, a Vestal, New York-based lawyer, was counsel for the child. They could not be reached.