In New York there is a presumption that a child born to a marriage is the legitimate child of both parents. The issue before the Supreme Court of New York, Wendy G-M. v. Erin G-M is whether his same presumption also applies to both parties in a same-sex marriage.
Plaintiff Wendy G-M. and her spouse, Defendant Erin G-M. were married. They were legally married in Connecticut before New York enacted the Marriage Equality Act. Wendy and Erin agreed to have a child together and agreed that the birth mother would undergo artificial insemination. Wendy and Erin also agreed that both the birth mother and the spouse would be the mothers of any child born from the procedure. A child was born to Wendy, who was the birth mother, and the birth certificate listed both Wendy and Erin as the parents. Soon afterward, however, Wendy and Erin separated. Wendy filed for divorce in December 2013, less than then three months after the birth of the child. Wendy would not permit Erin to visit with the child. Erin then filed a request with the Supreme Court of New York for access to the child, maintenance, and attorney fees. In opposition, Wendy argued that Erin was not a legal mother of the child.
The common law presumption of “legitimacy” to children born in a marriage has been codified. In the Family Court Act Section 24 of the Domestic Relations Law is titled: “Effect of marriage on legitimacy of children.” The statute provides that a child born to married parents “is the legitimate child of both parents.” Family Court Act § 417 provides that a child born of a parent who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of such marriage. Both of these statutes pre-date the increasing availability of artificial insemination and the existence of legally-recognized same marriages.
Since then, the State of New York has eradicated most sex-based distinctions in family law. The Marriage Equality Act swept away many of the sex-based distinctions in New York’s Domestic Relations Law in the spirit of individuals making their own choices in both entering and living a married life, free from unreasonable restraints. Section 2 of the MEA mandates that not only statutes, but the common law as well, are gender neutral with respect to all the legal benefits, obligations, etc. arising from marriage. DRL § 10–a (2).
There is no reason why the marital presumption should not apply to two mothers or two fathers. In this case, the presumption that a child born to a marriage is the legitimate child of both parents applies. Wendy presented no evidence to rebut this presumption. Wendy and Erin agreed to have a child as a product of their marriage and agreed that both spouses would be the parents of the child. Accordingly, Supreme Court of New York found Erin to be a legal parent of the child.