Same-Sex Spouses Cannot Bar Paternity Suit, Says Court

Monroe County Family Court Judge Joan Kohout handed a lesbian couple a disappointing decision when she determined that a married same-sex couple cannot use a marital statute to block a man's paternity petition for the child he fathered with one of the spouses during the women's marriage. Judge Kohout said that while state Domestic Relations Law prohibits discrimination against same-sex married couples, it does not require the court to “ignore the obvious biological differences between husbands and wives.”

No Presumption of Legitimacy for Same-Sex Partners' Child

As described in the ruling, the biological mother, Ms. C., met Ms. S. in 2008, and they moved in together in 2009. They were married on Nov. 22, 2010. During the women's marriage, Ms. C. was also conducting an on-again, off-again sexual relationship with petitioner Mr. M. The baby girl J.C. was born in March 2013. Mr. M. saw the child two times after her birth, but was not allowed visits with his daughter after November 2013. Ms. C. testified that she was not artificially inseminated and said that the only male with whom she had sex was the father. She acknowledged that Mr. M is J.C.'s biological father.

Kohout's holding in Q.M. v. B.C. and J.S., 2014 NY Slip Op 24345 (Fam. Ct., Monroe Cty. 10/21/14) (Kohout, J.), pointed out that neither spouse in a male-male marriage can biologically give birth to a baby, and neither spouse in a female-female marriage can be the biological “father.” Applying that logic about the “essential biology” of the sexes and their roles in the birth process, Kohout said the same-sex couple in the case before her cannot invoke the presumption of legitimacy to stop the biological father from seeking a determination that he fathered the baby. ” Ms. C. [the birth mother] argues that the presumption of the legitimacy or marital presumption that applies to a child born to a married couple requires the dismissal of this paternity petition,” Kohout wrote from Rochester. “The court disagrees.”

The presumption of legitimacy, which is in both common law and statute in New York, holds that when a married man's wife gives birth to a baby, it is presumed to be his child. Kohout noted that it developed chiefly to prevent “recalcitrant” husbands or former husbands for not taking responsibility for the children they had with their wives or ex-wives.

Ms. C. and her spouse, Ms. S., argued before Kohout that since J.C. was born during the two women's marriage, J.C. is presumptively the legal child of the two women, and it would not be in the best interests of the baby to upset her presumed status as the legitimate child of Ms. C. and Ms. S. Kohout, however, noted that Ms. S. has never adopted J.C. While Kohout said the record indicates that Ms. S. and the baby J.C. are close, the judge said the state Court of Appeals has repeatedly declined to expand the traditional definition of a parent past biological or birth parents and adoptive parents.

“Specifically, the court has rejected arguments that non-adoptive or non-biological third parties, such as Ms. S., should be granted parental status based on a claim of a close relationship with the child,” Kohout wrote, citing Debra H. v. Janice R., 14 NY3d 576 (2010), and Alison D. v. Virginia M., 77 NY2d 651 (1991). Kohout said that Ms. S. “stands in the position of many loving step-parents, male and female, who are not legal parents and are not entitled to court ordered custody or visitation with their step-children. The fact that she was married to Ms. C. at the time of J.C.'s birth, under the facts here, does not change her status.” Kohout added, however, that ” there is nothing to prevent Ms. C. from continuing to permit Ms. S. to have a relationship with J.C., as suggested by the attorney for the child, especially if she believes it to be consistent with her daughter's best interest.”

What About Equitable Estoppel?

Kohout also wrote that the attempt by Ms. C. and Ms. S. to invoke the doctrine of equitable estoppel to block the father's paternity petition was unavailing. The judge said the doctrine is typically used where a man has let a long period of time to pass before filing a paternity petition, allowing a parent-child relationship to develop between the child in question and another man. Petitions are blocked in those circumstances by best-interests-of-the-child considerations, the judge said.

In the case before her, Kohout found that no such long period of time has elapsed ' J.C. was only eight months old when her father filed his paternity petition in November 2013. Kohout indicated that if anyone in this case had been dragging their feet, it was the women, not Mr. M. “The court file documents the difficulty Mr. M. had in serving the respondents, including the need to hire a private investigator,” stated the court, yet “the respondents did not appear in court until March 17, 2014.”

In addition, no proof was offered to show that Mr. M. acquiesced in or promoted Ms. S.'s assumption of a parental role in the child's life.

Having found that neither the presumption of legitimacy nor equitable estoppel should bar Mr. M.'s paternity action from proceeding, the court gave the parties a week and a half to either waive the paternity test required by Family Court Act ' 532 (a) or return to court for an order directing that such test to be administered.

Joel Stashenko is the Albany Bureau Chief for the New York Law Journal, an ALM sister publication of this newsletter in which this article also appeared.

Monroe County Family Court Judge Joan Kohout handed a lesbian couple a disappointing decision when she determined that a married same-sex couple cannot use a marital statute to block a man's paternity petition for the child he fathered with one of the spouses during the women's marriage. Judge Kohout said that while state Domestic Relations Law prohibits discrimination against same-sex married couples, it does not require the court to “ignore the obvious biological differences between husbands and wives.”

No Presumption of Legitimacy for Same-Sex Partners' Child

As described in the ruling, the biological mother, Ms. C., met Ms. S. in 2008, and they moved in together in 2009. They were married on Nov. 22, 2010. During the women's marriage, Ms. C. was also conducting an on-again, off-again sexual relationship with petitioner Mr. M. The baby girl J.C. was born in March 2013. Mr. M. saw the child two times after her birth, but was not allowed visits with his daughter after November 2013. Ms. C. testified that she was not artificially inseminated and said that the only male with whom she had sex was the father. She acknowledged that Mr. M is J.C.'s biological father.

Kohout's holding in Q.M. v. B.C. and J.S. , 2014 NY Slip Op 24345 (Fam. Ct., Monroe Cty. 10/21/14) (Kohout, J.), pointed out that neither spouse in a male-male marriage can biologically give birth to a baby, and neither spouse in a female-female marriage can be the biological “father.” Applying that logic about the “essential biology” of the sexes and their roles in the birth process, Kohout said the same-sex couple in the case before her cannot invoke the presumption of legitimacy to stop the biological father from seeking a determination that he fathered the baby. ” Ms. C. [the birth mother] argues that the presumption of the legitimacy or marital presumption that applies to a child born to a married couple requires the dismissal of this paternity petition,” Kohout wrote from Rochester. “The court disagrees.”

The presumption of legitimacy, which is in both common law and statute in New York, holds that when a married man's wife gives birth to a baby, it is presumed to be his child. Kohout noted that it developed chiefly to prevent “recalcitrant” husbands or former husbands for not taking responsibility for the children they had with their wives or ex-wives.

Ms. C. and her spouse, Ms. S., argued before Kohout that since J.C. was born during the two women's marriage, J.C. is presumptively the legal child of the two women, and it would not be in the best interests of the baby to upset her presumed status as the legitimate child of Ms. C. and Ms. S. Kohout, however, noted that Ms. S. has never adopted J.C. While Kohout said the record indicates that Ms. S. and the baby J.C. are close, the judge said the state Court of Appeals has repeatedly declined to expand the traditional definition of a parent past biological or birth parents and adoptive parents.

“Specifically, the court has rejected arguments that non-adoptive or non-biological third parties, such as Ms. S., should be granted parental status based on a claim of a close relationship with the child,” Kohout wrote, citing Debra H. v. Janice R. , 14 NY3d 576 (2010), and Alison D. v. Virginia M., 77 NY2d 651 (1991). Kohout said that Ms. S. “stands in the position of many loving step-parents, male and female, who are not legal parents and are not entitled to court ordered custody or visitation with their step-children. The fact that she was married to Ms. C. at the time of J.C.'s birth, under the facts here, does not change her status.” Kohout added, however, that ” there is nothing to prevent Ms. C. from continuing to permit Ms. S. to have a relationship with J.C., as suggested by the attorney for the child, especially if she believes it to be consistent with her daughter's best interest.”

What About Equitable Estoppel?

Kohout also wrote that the attempt by Ms. C. and Ms. S. to invoke the doctrine of equitable estoppel to block the father's paternity petition was unavailing. The judge said the doctrine is typically used where a man has let a long period of time to pass before filing a paternity petition, allowing a parent-child relationship to develop between the child in question and another man. Petitions are blocked in those circumstances by best-interests-of-the-child considerations, the judge said.

In the case before her, Kohout found that no such long period of time has elapsed ' J.C. was only eight months old when her father filed his paternity petition in November 2013. Kohout indicated that if anyone in this case had been dragging their feet, it was the women, not Mr. M. “The court file documents the difficulty Mr. M. had in serving the respondents, including the need to hire a private investigator,” stated the court, yet “the respondents did not appear in court until March 17, 2014.”

In addition, no proof was offered to show that Mr. M. acquiesced in or promoted Ms. S.'s assumption of a parental role in the child's life.

Having found that neither the presumption of legitimacy nor equitable estoppel should bar Mr. M.'s paternity action from proceeding, the court gave the parties a week and a half to either waive the paternity test required by Family Court Act ' 532 (a) or return to court for an order directing that such test to be administered.

Joel Stashenko is the Albany Bureau Chief for the New York Law Journal, an ALM sister publication of this newsletter in which this article also appeared.