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Children of Same-Sex Couple are ‘Children of Marriage’ in NY

by | Jan 9, 2018 | Alimony and Spousal Support, NY

As discussed in previous Paternity blog posts, on Long Island, New York there exists a presumption of legitimacy for children born “of the marriage.” This means that any child born by the wife during the marriage will be presumed to be the husband’s child. Recently, a New York court has extended that presumption to children born of a same-sex marriage.

What is a Presumption of Legitimacy?

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A presumption of legitimacy states that if a child is born to a married couple, that child is presumptively that married couples’ offspring. Since it is only a presumption, and not a legal certainty, this may be rebutted by either party. If, for example, the husband has been living in a different country for a period of 7 years and has not returned during that period, and the child is 4 years old, there is strong evidence that the child is not a product of the marriage.

Why is the Presumption Important?

When considering a Long Island Divorce, this presumption helps to streamline the process of divorce. It allows the court to determine issues of custody, visitation and support without having to determine whether the children of the marriage are a part of their parents’ divorce.

New Case Law

As mentioned above, the Appellate Division in the First Department has extended this presumption to children born of same-sex marriages. This means that the child born in a same-sex marriage is treated with the same presumption of legitimacy as one born in a heterosexual marriage. It assists the parents in maintaining their rights to the child, and helps to protect the child’s right to continue the relationship with both of his or her parents.

In Carlos A. v. Han Ming T., a married same-sex couple had a child through a surrogate. As such, the child was only biologically related to one of the men, but was born during the period in which the men were legally married. The court held in its September decision that the child was born in wedlock and thus was presumed to be the child of both men. This allowed the non-biological father to prevent another man from adopting his son.

What Does this Mean for Me?

In New York, the court is structured in such a way that some decisions are binding (the court hearing your case must follow it) while others are only persuasive (the court hearing your case does not have to listen to it, but can take it into consideration). In this case, the court that decided Carlos A. was the First Department. On Long Island, we are within the Second Department’s jurisdiction. This fleshes out to mean that the decision from Carlos A., namely the presumption extending to same-sex parents, is only persuasive on Long Island. However, this is not to say that the decision in Carlos A. does not matter here. The First Department’s decision to extend the presumption to same-sex couples can be brought to the court’s attention during the pendency of your Long Island Divorce. Dependent upon the circumstances of your case, and any further changes in the law, the court may choose to rely on the First Department’s decision.

Have Questions About Paternity on Long Island? Contact Us

See this page to learn everything you need to know about Child Custody and Visitation on Long Island.

This is still an area that is very much in flux when it comes to your Long Island Divorce. This is one of the many reasons that hiring an experienced attorney who is up-to-date on all the relevant case law is so important to your case. If you have further questions, we encourage you to contact our Long Island Divorce & Family Law firm at 631-923-1910 to set up your free consultation.

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