New York Divorce and Household Legislation Weblog: Second Division Joins First and Third Division Holding Presumption of legitimacy relevant to Similar-Intercourse Marriages

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Second Division Joins First and Third Division Holding Presumption of legitimacy relevant to Similar-Intercourse Marriages

New York has a powerful coverage in favor of
legitimacy. Matter of Nameless, 74 Misc.second 99, 104, 345 N.Y.S.second 430
[1973].  At frequent legislation there’s a
rebuttable presumption that the kid, a toddler born to a married girl, is the
reputable youngster of each events. Matter of Findlay, 253 N.Y. 1, 7, 170 N.E.
471 [1930]. The presumption {that a} youngster born to a wedding is the reputable
youngster of each mother and father ‘is without doubt one of the strongest and most persuasive identified to the
legislation.” State of New York ex rel. H. v. P., 90 A.D.second 434, 437, 457 N.Y.S.second 488
[1982]; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930].
The presumption of legitimacy as
codified in Home Relations Legislation §24 is {that a} youngster “born of fogeys who
prior or subsequent to the delivery of such youngster shall have entered right into a civil
or spiritual marriage, or shall have consummated a common-law marriage the place
such marriage is acknowledged as legitimate”, is the reputable youngster of each delivery
mother and father. See additionally Household Ct Act § 417.
In Matter of Maria-Irene D. (Carlos A. v.
Han Ming.), 153 A.D.3d 1203, 1205 (1st Dept., 2017) the Appellate Division,
first division held that the “presumption of legitimacy”, applies to a toddler
born to a same-sex married couple. There the court docket utilized the presumption of
legitimacy to a married homosexual male couple, one member of whom needed to vacate
the adoption of their youngster by the opposite man’s new accomplice.
            In
Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op
00495, *5-6 (3d Dept., 2017) the Third Division held that the “presumption of
legitimacy” utilized to a a married lesbian couple and that, subsequently, a
paternity petition filed by the male sperm donor should fail. The court docket pointed
out that sometimes the presumption is rebuttable within the legislation” upon clear and
convincing proof excluding the [spouse] because the youngster’s [parent] or in any other case
tending to show that the kid was not the product of the wedding,” quoting
Matter of Beth R. v. Ronald S., 149 A.D.3d at 1217. In circumstances involving
opposite-gender spouses, the rebuttal occurs, as an example, with “proof {that a}
husband didn’t have ‘entry to’ his spouse on the time that she conceived a
youngster and he acknowledged that he was not the organic father, mixed with
testimony that the kid was conceived throughout a visit with the putative father
with whom his spouse was in a monogamous relationship,” citing Matter of Beth R.
v. Ronald S. However making use of case legislation on rebuttal to same-gender spouses is
“inherently problematic, as it’s not at present scientifically attainable for
same-gender {couples} to provide a toddler that’s biologically the product of the
marriage,” and the “altering authorized and social panorama requires reexamination
of the normal evaluation governing the presumption of legitimacy.”
            In Matter of Joseph O. v Danielle B.
,2018 NY Slip Op 01192 (second Dept., 2018) the Appellate Division, Second
Division noticed that it’s a longtime authorized presumption that each
youngster born throughout a wedding is the reputable youngster of each spouses (see
Home Relations Legislation § 24[1]; Household Ct Act § 417) and that the respondents
appropriately contended that as a result of the kid was conceived and born to the
lesbian respondents throughout their marriage, there was a presumption that the
youngster is the reputable youngster of each respondents (see Home Relations Legislation §
24[1]; Household Ct Act § 417; Matter of Christopher YY. v Jessica ZZ., _____ AD3d
_____, 2018 NY Slip Op 00495, *5-6; Matter of Maria-Irene D. [Carlos A.-Han
Ming T.], 153 AD3d 1203, 1205). The presumption of legitimacy is rebuttable
(see Matter of Findlay, 253 NY 1, 7), and thus its utility alone didn’t
warrant the abstract denial of a paternity petition introduced by the sperm donor.
Nonetheless, the Appellate Division discovered that the respondents have been entitled to
dismissal of the paternity petition on the bottom of equitable estoppel and it
was not crucial to find out if the presumption of legitimacy was rebutted.

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