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New York Court Recognizes “Presumption of Legitimacy” for Same-Sex Couples

On Behalf of | Mar 2, 2018 | Divorce & Family Law, News

A child born to married same-sex parents is presumed to be the legitimate child of those parents, a New York Appellate Court recently decided. In the Matter of Joseph O. v Danielle B, the New York Appellate Division, Second Judicial Department rejected a sperm donor’s paternity claim in favor of the child’s married same-sex parents. Two other New York Appellate Courts have delivered similar opinions in recent months.

Danielle B. gave birth to a child in 2012, as a result of a sperm donation arrangement with Joseph O. The sperm donor agreed that he would have no parental rights or responsibilities for any children that might result. Danielle gave birth to a child in 2012, while married to her spouse, Joynell B.

In 2015, Joseph began legal proceedings seeking to be declared the child’s father and also seeking visitation rights. The Second Judicial Department rejected Joseph’s claim, stating that it would not be in the best interest of the child to declare him the father.

This decision is good news for same-sex parents who may face child custody challenges, and it also highlights a number of complex issues in New York’s evolving child custody laws.


New York Domestic Relations Law § 73 provides, in part, that “any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine…” is the legitimate child of the woman and her spouse. This presumption of legitimacy cannot be challenged (or “rebutted,” in legal terms). Because Danielle’s artificial insemination was not performed by a person “duly authorized to practice medicine,” the Court decided this law did not apply to this case.

Danielle also argued that her child was born while she was married and therefore the child was entitled to a “presumption of legitimacy.” The Second Division agreed, stating that “it is an established legal presumption that every child born during a marriage is the legitimate child of both spouses.” The Court further found that this presumption of legitimacy applied to Danielle and Joynell’s child.

However, a presumption of legitimacy can be rebutted if there is clear evidence excluding a spouse from being a child’s biological parent. Because Danielle and Joynell could not conceive a child together, the presumption of legitimacy could be rebutted. How, then, to decide whether a same-sex spouse or a biological father is the child’s legal “parent?”

The primary consideration of the Court, in this case, was the same as in other New York child custody matters: what would be in the best interest of the child?


In the Matter of Joseph O. v Danielle B., the Court decided that it would not be in the child’s best interest to declare Joseph the child’s father. The Court agreed with Danielle’s argument that the doctrine of “equitable estoppel” should prevent Joseph from asserting paternity rights.

In simplified terms, equitable estoppel is invoked to prevent someone from asserting their rights in situations where doing so would result in an injustice. Equitable estoppel has been used to prevent a biological father from asserting paternity rights if doing so would be harmful to the child. In this case, Danielle’s spouse had established a close parental relationship with the child, and the Court determined that it would not be in the child’s best interest to disrupt that relationship. Therefore, Joseph’s paternity petition was dismissed.

In January, the Third Judicial Division decided in favor of same-sex parents in a similar case, but that Court noted that a “workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage….” These recent decisions are positive steps towards the consistent application of New York law to children of same-sex marriages, but it is likely that same-sex couples will continue to face unique challenges as New York’s legal and social landscape changes.

If you are involved in a child custody dispute, it is important that your attorney is knowledgeable regarding this evolving area of New York law. Contact Frost & Kavanaugh to learn more.