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New York recognizes the same-sex of marriage validly entered into outside of New York. Beth R. v. Donna M., 853 N.Y.S.2d 501 (2008)


At the time that this case was decided, New York did not recognize same sex marriage. The law changed on June 24, 2011. Before that time, it was common for same sex couples to get married outside of New York in jurisdictions that did recognize same sex marriage.  Just like with any marriage, when same sex relationships dissolved, legal questions related to child custody and child support had to be resolved. In Beth R. v. Donna M., the  Supreme Court of New York was asked to determine whether New York recognizes same sex marriages validity entered into outside of New York and what the rights and obligations are of the parties regarding child custody and child support.

Plaintiff Beth R. and Defendant Donna M., both residents of New York, met in 1999 and soon thereafter entered into an intimate relationship.  The moved in together in 2002. In 2003, Donna became pregnant through artificial insemination.

At the time, the state of New York did not issue marriage licenses to same-sex couples, but the province of Ontario, Canada did. The couple obtained a marriage license in Toronto, intending to marry prior to the birth of the child but had to postpone the ceremony when Donna’s father died. A daughter, “J.R.,” was born to Donna in October 2003.

In February 2004, the couple married in Toronto. In 2006, again through artificial insemination, Donna had another child, “S.R.” Donna did not permit Beth to adopt the girls, they were given Beth’s last name. The girls called Beth “mom,” and Beth was treated as their mom.  She participated in their care, education, and upbringing, contributed to their support, and covered them under her medical insurance policy. Beth asserts that the only way she was able to add Donna and the children to her medical insurance was because they were married. Beth and Donna each procured life insurance policies naming the other as beneficiary, and Donna’s will named Beth as the girls’ guardian.

In 2006, Donna asserted that she wanted to terminate the marriage, and Beth filed for divorce. Donna filed a motion to dismiss the divorce action on the ground that the marriage was void under New York law. Wishing to remain a part of the lives of the children, Beth filed a cross-motion asking the court to determine her custodial rights and support obligations for the children born immediately before and during the marriage.


In the state of New York, marriage licenses may not be issued to same-sex couples and marriages of same sex couples could not be solemnized in New York. New York legislature has been silent on the issue of recognizing  same-sex marriages entered elsewhere. Thus, doctrines of common law and comity supply the rule of law.  New York courts have long held that out-of-state marriages, if valid where entered, will be respected in New York even if under New York law the marriage would be void. Van Voorhis v Brintnall, 86 NY 18, 24-25 (1881). The exceptions to this rule are marriages prohibited by positive law of this state and marriages abhorrent to New York public policy. The abhorrence exception has been applied only to marriages involving polygamy or incest. Furthermore, recent assertions by executive branch offices support this court’s conclusion that out-of-state same-sex marriages are properly recognized under our law. Thus, Donna’s motion to dismiss is denied.

With respect to Beth’s motion concerning her interest in the children, Donna opposes the motion in the basis that Beth is not legally related to the children by blood or adoption. On the one hand, courts have denied spouses legal rights and obligations toward children who are not related to them by blood or adoption. On the other hand, courts have used the principle of equitable estoppel to enforce the continuation of certain child-adult relationships.

Here, the court concludes that Beth has standing to seek a determination of her rights and obligations regarding the children. The evidence clearly shows that the parties and the children were operating as a family unit and that Beth was treated as the girls’ mother. It is in the best interests of the children that Beth’s legal rights and obligations regarding their custody and support be investigated. Accordingly, her motion for a determination in that regard is granted.


New York law recognizes marriages validly entered into outside of New York and accords standing to a member of a same-sex married couple regarding such person’s rights and obligations toward children born to the person’s spouse where the person was treated as the children’s parent despite never having adopted them.




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