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Long Island Divorce Child Support Same Sex ParentsThe legalization of Same-Sex Marriages in New York has far-reaching implications for Long Island couples who have children in these marriages, particularly with regards to death, divorce and child support. While both spouses cannot be biological parents of the child or children of the marriage, should the non-biological parent/s and children born during that marriage be afforded the same legal protections opposite-sex spouses have enjoyed?

Children Born of Marriage Deemed ‘Legitimate’ on Long Island, NY

The law in New York provides presents a strong presumption of legitimacy to children born of a marriage. This presumption arises not only from case law rulings, but also from its codification in Section 24 of New York’s Domestic Relations Law. Both provide that any child born to married parents is presumed to be “the legitimate child of both parents.” Non-marital children, therefore, are not afforded this presumption, and are seen as the legitimate child of only the mother.

Benefits of Legitimacy

In order to be the legitimate child of the father, there must be facts and circumstances to prove such. While you may be wondering why this matters, one important benefit of being afforded said presumption is what happens upon the death of a parent to whom the child is not deemed to be a legally legitimate child.

When an illegitimate child’s father dies without a will, the child must prove paternity, either through a court order or other evidence, such as the father having held the child out as his own during his lifetime, in order to inherit through the father’s intestate distribution scheme.

A second issue arises upon the divorce or separation of a couple. A parent is entitled to visitation and/or child support for a child born of a marriage; however, a parent of an illegitimate child may be legally excluded from seeing that child upon divorce or separation. Accordingly, the presumption affords marital children a large benefit over non-marital children. However, with the recent passing of New York’s Marriage Equality Act, which recognizes same-sex marriages, the issue of whether this presumption applies to same-sex marriages as well has reached the courts.

Wendy G-M. v. Erin G-M.

This case, which was heard in New York’s Supreme Court in Monroe County, centered on a child born to a same-sex couple via artificial insemination. The couple, which was legally married, consented to the procedure and executed a document providing that any child born of the procedure would be “accepted as the legal issue of [the] marriage.” The non-birthing spouse was involved in the process and pre-birth rituals, such as birthing classes and name choosing, to the same extent as the birth-spouse was, and the child’s birth certificate has both women listed as her parents. Not long after the birth of the child, the couple separated, the birth-spouse filed for divorce and subsequently prohibiting her partner to visit with the child. If the non-birth parent was considered to be the child’s legitimate parent, she would have a right to visitation and the birth mother could not legally prohibit that right without a court order.

Does the Same Presumption Apply to Same-Sex Marriages?

Because the New York Courts had previously held that the term “parent” does not contain gender-specific boundaries, the court in Wendy G-M. v. Erin G-M. held that the presumption of legitimacy applies to children born of same-sex marriages as well.

Furthermore, courts have stated that any changes in the definition of the term “parent” cannot come from case law, but rather should come from changes in legislation that represent the growing views of the community. More specifically on the topic of artificial insemination, the Domestic Relations Law provides that a child born of artificial insemination is not the legitimate child of the anonymous donor, but of the husband and wife to which the child is born. Therefore in such instances, when all statutory requirements are met, there is a rebuttable presumption that a child born of artificial insemination is the child of the marriage.

So long as both parents consent to and are involved in the procedure, and there is intent that both parties be considered to be the legitimate parents of the child, there is no legal difference between opposite or same sex marriages. As with most, this presumption is rebuttable and can be negated by either spouse; “the birth-mother could produce evidence that she never intended her spouse to be the parent … [and] the unknowing, non-biological spouse, would be required to overcome the presumption of consent, and prove lack of consent.”

What Does this Mean for Me on Long Island?

If you are in a same-sex relationship in New York, any child born of your marriage through artificial insemination, so long as there is consent on behalf of both of you and your partner, will be presumed to be the legitimate child of the marriage. Therefore, if you are seeking a divorce, the birth-spouse cannot prohibit the non-birth parent from visitation rights with the child, nor can be excused from child support payments.

Have Questions About Your Parental Rights and Responsibilities? Speak to an Experienced and Compassionate Long Island Divorce Attorney

The Long Island divorce attorneys and divorce mediators at the law firm of Hornberger Verbitsky, P.C. are experienced in all aspects of divorce law on Long Island, including those impacted by the recent Marriage Equality Act. To schedule an appointment for a complimentary consultation to discuss your case, contact our offices at 631-923-1910.