New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

On appeal, a court ruled that a husband can be deemed the legal parent of a child born to his wife, where the child was conceived as a result of artificial insemination during the marriage, but where the husband's consent to the artificial insemination was not obtained in writing.

Domestic Relations Law § 73  provides that:

Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes. . . . The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he [or she] had rendered the service.

The problem in Laura Ww. v Peter Ww was that the husband never signed the consent. In fact, shortly after the wife was artificially inseminated, the parties separated. At the time they separated, parties agreed, in writing, that the husband would not be responsible for paying child support the artificially inseminated child.

The Court declared the separation agreement unenforceable.

Indeed, the agreement left the child fatherless without any hearing or analysis of the child's rights and interests. Given that "the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met," we agree that the parties' agreement which preceded any determination of legal paternity to leave the child without the husband's support cannot stand

The Court relied on New York’s strong presumption that a child born to a marriage is the legitimate child of both parents. In addition the court announced that it would “follow the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by[artificial insemination, shifting the burden to the husband to rebut the presumption by clear and convincing evidence."

In addition, the court stated that the doctrine of equitable estoppel also precluded the husband from "seeking to disclaim paternity of the parties' child, whose best interest is paramount."

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I am back from a much needed warm weather winter vacation with the family. Now, back to blogging.

While I was away, Justice Laura Drager rendered an important decision in the case Beth R. v. Donna M. Following the decision in Martinez v. Monroe County, which I discussed here, Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel, to address the issue as to whether Beth's motion for declaration of her parental rights can be entertained by the court since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.

As pointed out in the Leonard Link:

Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.

And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.

Now that the door is open to the judicial acceptance of same sex marriage, it will be interesting to see how the law evolves to provide for same-sex divorce.

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