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

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

New York has a powerful coverage in favor of
legitimacy. Matter of Nameless, 74 Misc.2nd 99, 104, 345 N.Y.S.2nd 430
[1973].  At frequent regulation there’s a
rebuttable presumption that the kid, a toddler born to a married lady, is the
official baby of each events. Matter of Findlay, 253 N.Y. 1, 7, 170 N.E.
471 [1930]. The presumption {that a} baby born to a wedding is the official
baby of each mother and father ‘is among the strongest and most persuasive recognized to the
regulation.” State of New York ex rel. H. v. P., 90 A.D.2nd 434, 437, 457 N.Y.S.2nd 488
[1982]; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930].
The presumption of legitimacy as
codified in Home Relations Regulation §24 is {that a} baby “born of oldsters who
prior or subsequent to the beginning of such baby shall have entered right into a civil
or non secular marriage, or shall have consummated a common-law marriage the place
such marriage is acknowledged as legitimate”, is the official baby of each beginning
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 courtroom utilized the presumption of
legitimacy to a married homosexual male couple, one member of whom wished to vacate
the adoption of their baby by the opposite man’s new associate.
            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, due to this fact, a
paternity petition filed by the male sperm donor should fail. The courtroom pointed
out that usually the presumption is rebuttable within the regulation” upon clear and
convincing proof excluding the [spouse] because the baby’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 instances involving
opposite-gender spouses, the rebuttal occurs, as an illustration, with “proof {that a}
husband didn’t have ‘entry to’ his spouse on the time that she conceived a
baby 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 regulation on rebuttal to same-gender spouses is
“inherently problematic, as it’s not at present scientifically doable 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 (2nd Dept., 2018) the Appellate Division, Second
Division noticed that it’s a longtime authorized presumption that each
baby born throughout a wedding is the official baby of each spouses (see
Home Relations Regulation § 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
baby is the official baby of each respondents (see Home Relations Regulation §
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 software 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 essential to find out if the presumption of legitimacy was rebutted.

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