The standard rule in family law is that the legal spouse of a woman who gives birth to a child is presumed to be the child’s legal parent. Of course, the traditional statement of the rule is that when a married woman gives birth, her husband is presumed to be the child’s father. The original purpose of this doctrine was to protect the legal status of a child, who would be considered “illegitimate” if its biological parents were not married to each other. Some states treat that presumption as incontestable, while others, including New York, say that the presumption can be defeated by evidence showing that a different man is the child’s biological father. A New York court, faced with a paternity proceeding brought by a man who had an affair with a woman who was married to another woman, recently decided that the man had a right to attempt to prove that he is the biological father and seek a paternity order, rejecting the idea that the traditional presumption should play any role in this case.
The facts of Q.M. v. B.C. and J.S., P-13761-13, decided on October 21, 2014, and reported in the New York Law Journal on November 13, are unusual. Ms. C. and Ms. S. became acquainted when Ms. S was just 16. They began living together the following year, and were married in Dover, New Hampshire, on November 22, 2010. Their marriage has not been smooth, however, including several separations, and a divorce proceeding is under way. During one of their separations, during parts of 2011 and 2012, Ms. C began a relationship with Mr. Q.M.. Wrote Justice Joan Kohout (N.Y. Supreme Court, Monroe County), “Ms. C. admitted that she became pregnant with J.C. as a result of sexual relations with Mr. M. and that she was not sexually involved with any other man at the time she became pregnant.” That is, Ms. C. admits that Mr. M. is the biological father of her child, who was not conceived through donor insemination. Indeed, after the child was born, Ms. C allowed Mr. M. two visits, even though their intimate relationship had ended when she got back together with her wife. However, shortly after these visits, Mr. M. filed this paternity action, and Ms. C. cut off his access to the child. Mr. M. sought, among other things, genetic testing to confirm that J.C. is his daughter.
Ms. C. was pregnant when she got back together with Ms. S., who was at the hospital when the child was born, “selected the child’s name and signed her birth certificate. Both Ms. C. and Ms. S. testified that Ms. S. has a close relationship with J.C.,” wrote the judge, “and that since their separation, Ms. C. has permitted Ms. S. to have contact with the child.” The women have been separated since April 2014, and their divorce action was filed in July. Nonetheless, Ms. S. desires to be treated as a mother of J.C., and her estranged spouse, B.C., supports her position on this.
“Ms. C. takes the position that Mr. M. should be excluded from J.C.’s life,” wrote the judge. “Although she has never denied that he is J.C.’s biological father, she argues that her wife is the lawful and proper parent of J.C. She testified that she wants her ‘wife to have rights to my daughter as she has been.’ Ms. C. acknowledges that Ms. S. never adopted J.C. and that the couple separated in April 2014.”
Ms. C. and Ms. S. want to take advantage of the parental presumption, arguing that there was no need for Ms. S. to adopt J.C. in order to be considered her parent, because the women were married when J.C. was born. They relied on New York’s Marriage Equality Law, which provides that same-sex and different-sex marriages are to be treated the same for all purposes of law. Alternatively, they relied on the legal doctrine of “equitable estoppel,” arguing that under these circumstances Q.M. should be barred from asserting parental rights.
Justice Kohout rejected both arguments.
“With the advent of same-sex marriage, the role of the non-biological spouse, especially in a marriage of two women, requires a re-examination of the traditional analysis of the presumption of legitimacy,” wrote the judge. “Most of the cases to date concerning same-sex couples involve children born of artificial insemination where female spouses have planned together to raise the child. Recently, in the well-crafted decision of Wendy G-M v. Erin G-M the supreme court held that in the context of a divorce of a same-sex couple, the non-biological wife was the legal parent of a child born of artificial insemination during the marriage.” The judge pointed out that such cases usually involve an anonymous sperm donor and “there is no legal father,” so “the statute may easily be applied in a gender neutral manner.”
But in this case, she found, such application of the statutory presumption did not make sense because, as a matter of biology, “there is no dispute that Ms. S. is not, and could not possibly be, the second parent of this child.” Responding to Ms. C.’s argument that the Marriage Equality Act requires the parental presumption rule to be applied in a gender neutral manner, the judge said that “the Marriage Equality Act does not require the court to ignore the obvious biological differences between husbands and wives.” Referring to the state in question, she wrote that it could be “easily applied to same-sex female married couples, but not to same-sex male couples, neither of whom are able to bear a child. In the same vein, neither spouse in a same-sex female couple can father a child. Thus, while the language” of the Marriage Equality Law “requires same-sex married couples to be treated the same as all other married couples, it does not preclude differentiation based on essential biology.”
The judge also noted that New York’s highest court, the Court of Appeals, has “repeatedly declined to expand the traditional definition of a parent beyond biological or birth parents and adoptive parents,” and has “rejected arguments that non-adoptive or non-biological third parties, such as Ms. S., should be grated parental status based on a claim of a close relationship with the child.” In Justice Kohout’s view, Ms. S. has, at best, the status of a step-parent. While that might mean, under appropriate circumstances, she would be awarded visitation rights with J.C., she could not seek custody in preference to the child’s biological parents, Q.M. and B.C. The fact that she was married to B.C. when the child was born “does not change her status.”
Justice Kohout found that the alternative legal theory of equitable estoppel provided no help to the mothers in this case. Mr. M. has never denied being the biological father of J.C., sought out contact shortly after the child’s birth, and filed a paternity action promptly, seeking to establish his legal ties. Equitable estoppel might be used, for example, to reject a paternity claim from a man who had agreed to donate sperm under the condition that he would not assert parental rights, but could not be used on these facts to prevent Mr. M. from asserting a paternity claim.
Justice Kohout wrote, “Since Ms. S. never adopted J.C. and is not a biological parent, she does not fit within New York’s definition of parent. Thus, Ms. S. is not entitled to court ordered custody or visitation with J.C., and any contact she has with J.C. is entirely by voluntary arrangement with Ms. C. Of course, there is nothing to prevent Ms. C. from continuing to permit Ms. S. to have a relationship with J.C., as suggested by the attorney for the child [appointed by the court], especially if she believes it to be consistent with her daughter’s best interest.”
The problem, however, is that Mr. M. will have the status of a legal parent who can seek court-ordered custody and visitation, as against Ms. S., who will have no such rights. If Ms. C were to die or become incapacitated from taking care of J.C., Mr. M. would hold all the cards in a dispute with Ms. S. over custody and visitation. The failure of New York law to allow for the possibility that a child can have more than two legal parents at the same time leaves a gap in the rights of de facto parents such as Ms. S. Progressive legislation in California now recognizes the possibility of more than two parents in unusual cases. New York might consider the desirability of legislative reform in light of the legal and social changes accompanying the Marriage Equality Act. The facts of this case suggest that it would be desirable for Ms. S. to have more secure legal standing than “step-parent” in her relationship with J.C.
B.C. is represented by Yolanda Rios of the Legal Aid Society of Rochester, New York. J.S. is represented by Marc A. Duclos, Assistant Conflict Defender, assigned because the Legal Aid Society could not represent both mothers simultaneously due to their differing legal interests. The court appointed Beth A. Ratchford as attorney to represented the child’s interests. James A. Napier represents Q.M.