Children of a Married Same-Sex Couple

In 2013, wishing to become parents, Marco D. and Ming jointly executed an egg donor and surrogacy agreement. Both of them contributed sperm, but the donated egg, which was then implanted into the surrogate, was fertilized by Marco D.'s sperm. The resulting child, named for both of the couple's mothers, was born in September 2014.

After the child was born, her two fathers petitioned a Missouri court together to terminate any parental rights held by the egg donor and the gestational surrogate. In October 2014, the Missouri court declared Marco D. sole exclusive custody of the child, on the basis that he was the genetic father. Ming's legal relationship to the child was not addressed in the order. Marco D., Ming and the baby returned to their home in Florida and lived together there for a year as a family. In October 2015, Ming moved to the UK to look for work.

Meanwhile, as far back as 2013, Marco D. had entered into a relationship with another man, identified as Carlos A. When Ming moved to the UK, Carlos A., Marco D. and the baby moved to New York. Three months after this group moved to New York together, Carlos A. petitioned to adopt the now-toddler as a co-parent with Marco D.

The adoption papers explained that Marco D. had been married to Ming at the time of the child's conception and birth, but claimed that the married couple had lived apart after 2012 and that Carlos A. and Marco D. had been the only ones to continuously care for the child since her birth. A home study was done, and the report that resulted claimed that Marco D. and Ming separated in 2013. Carlos A. did not disclose to the New York court that, during the pendency of the adoption proceeding (in March 2016), Ming had filed for divorce from Marco D. in Florida, and had sought joint custody of the child in that petition. Ming was unaware at this time of Carlos A.'s attempt to adopt the child.

New York Family Court granted Carlos A.'s adoption petition in May 2016. Ming soon learned of this and moved to vacate the adoption, claiming pertinent information had been kept from the Family Court — namely, that he was a parent of the child and was entitled to notice of the adoption petition, and that he had a right to be heard in any adoption proceeding. Family Court granted Ming's motion on the basis that Carlos A. and Marco D. had kept material information from the court that was relevant to the decision. See Domestic Relations Law § 114(3). Family Court also determined that Ming was entitled to notice and an opportunity to be heard in the adoption matter. But the court left the possibility of adoption by Carlos. A. open, should it be appropriate, once the Florida divorce proceeding was completed. Carlos. A. appeaed.

The Appellate Division determined that Family Court did not err in vacating the adoption after observing that there was no dispute as to the validity of Marco D. and Ming's marriage, and no dispute that it lasted from 2008 to the time that the adoption was granted, and beyond. The court noted that New York recognizes out-of-state marriages that are legal in those other jurisdictions, and that the child was born in accordance with a surrogacy agreement entered into by both Marco D. and Ming.

Most importantly, the appellate court said that because of the jointly signed surrogacy agreement, coupled with the fact that Marco D. and Ming were married at the time the child was conceived and born, the child must be presumed by law to be the legitimate offspring of both Marco D. and Ming. See Domestic Relations Law § 24; Matter of Fay, 44 N.Y.2d 137 (1978), appeal dismissed 439 U.S. 1059 (1979). This result was bolstered, said the court, by the facts that Marco D. and Ming had in fact lived together with the child for some time after her birth, and had undertaken steps to establish Ming's parental rights to the child under UK law after Ming moved there. “Under these circumstances,” stated the court, “the Missouri judgment in 2014 awarding Marco sole and exclusive custody of the child, as opposed to the egg donor and surrogate, was insufficient to rebut the presumption of legitimacy.”

A second, independent, basis for vacating the adoption order was the omission of relevant information from the petition. See Relations Law § 114(3). “The adoption petition required petitioner to give a sworn statement that the child to be adopted was not the subject of any proceeding affecting his or her custody or status,” the court observed. “Even though petitioner was aware of the Florida divorce action before finalization of the adoption, he failed to disclose the action to the court, instead averring in a supplemental affidavit that there had been no change in circumstances 'whatsoever' since the filing of the adoption petition.”

For these reasons, the appellate court upheld Family Court's vacation of the adoption order.

The State of the Presumption of Legitimacy in New York

The unanimous decision in Carlos A. v. Han Ming T. is not binding on New York's other three appellate departments, but it may prove persuasive to those jurisdictions, which in some cases have seen family courts deny the presumption of legitimacy to children born to same-sex married couples. And the outcome — affirming that children born to same-sex couples are presumed legitimate — appears to be more in line with last year's Court of Appeals decision in Matter of Brooke S.B. v. Elizabeth A.C.C., in which New York's highest court expanded the definition of “parent” to include a non-married former same-sex partner who had agreed with the biological parent to conceive and raise a child as co-parents.

Linda Genero Sklaren, a partner at Warshaw Burstein who served as of counsel to Ming T.'s adoption lawyers, explained that New York's First Appellate Department's legal recognition of the presumption of legitimacy is important because “with technology as it is today [for surrogate births] for same-sex couples, both spouses in same-sex marriage are not going to be biologically related to a child.” She applauded the decision for protecting the rights of the children of same-sex partners to continue their relationships with each of the people they consider their parent.

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Janice G. Inman is Editor-in-Chief of this newsletter.