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Child CustodyMarriageSame-Sex Couples Presumed Legitimate Parents of Children

October 18, 2017

In New York, there is a “presumption of legitimacy” which provides that a child born during a marriage is presumed to be the married couples’ child.  A New York appeals court ruled that this presumption should apply equally to both heterosexual and same-sex couples.

This is a logical extension of the 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 “parenthood” to include the nonmarried, ex-partner of a biological parent.  The court in Brook S. B. declared that either party could seek custody or visitation rights of children resulting from the same-sex relationship.  The Brook S.B. case is discussed at length here.

This latest case goes even further than the decision in Brooke S.B. in expanding the parental rights of same-sex couples.   Now, not only can either party seek custody or visitation if the same sex relationship dissolves, but now, since the child is presumed to be the legitimate child of both parties, it would be unnecessary for the non-biological parent to formally adopt the child in order to establish his/her paternity rights.  Like a child born to heterosexual parents, the child of a same-sex couple will be presumed legitimate, and its parents will enjoy all the rights of natural parents.

This is not the first case to deal with the presumption of legitimacy for same-sex parents in New York,  but, I believe, it is the first appellate decision.  This case, therefore, must be followed by the trial court in Manhattan and will be persuasive throughout the remainder of New York State.

This decision is a continuation of the progress made in bestowing same sex-couples the same rights as possessed by heterosexual married couples.    It further is recognition that even though it is impossible for both same-sex parents to be a child’s biologic parent, in a marriage, this strong presumption will trump science.




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