A Key Step Forward for Parental Rights in Modern Families

New York courts are continuing to prove that they are dedicated to protecting the rights of the LGBT community.  In an important recent case, the Appellate Division applied the “presumption of legitimacy”—the concept that a child born during a marriage is the legitimate child of the couple—to married same-sex partners.  Applying the presumption of legitimacy—which comes along with key parental rights and protections—was especially enlightened in the circumstances of this case, where the child was not a DNA match to both parents.  For many LGBT families, the decision reflects a critical step forward in establishing the non-biological parent’s rights.

In the Matter of Maria-Irene D., Ming and Marco entered into a legally recognized same-sex marriage in 2008.  In 2013, the couple—determined to be parents—entered into an agreement with an egg donor and surrogate.  Their child (who is the biological child of Marco) was born in September 2014.  Marco and Ming arranged to have the egg donor and surrogate’s rights legally terminated—thereby eliminating any parental rights the donor or surrogate might have otherwise had.  As a result, Marco was awarded sole and exclusive custody.  Marco, Ming and the child lived together as a family until October 2015.

In March 2016, Ming filed for divorce and sought joint custody of the child.  But unbeknownst to Ming, Marco’s paramour had already commenced an action to adopt the child.  That petition was subsequently granted—in part based on significant misrepresentations to the court.  When Ming learned about all of this, he went to court to vacate the adoption, arguing that relevant facts were not disclosed to the court—and that, as the child’s parent, he was entitled to notice of the adoption and an opportunity to be heard before the child could be adopted. 

The Appellate Division granted Ming’s request and vacated the adoption.  The Court reasoned that, because Marco and Ming were in a legally recognized marriage when they entered into the egg donor and surrogacy agreement and at the time of the child’s birth, it is presumed as a matter of law that the child is a product of the relationship.  In other words, Marco and Ming each possess parental rights to the child. 

The Appellate Division also explained that Marco’s prior award of sole and exclusive custody did not rebut the presumption of legitimacy because they had lived together as a family and took steps toward establishing Ming as a parent.  The Court reasoned that, in light of the Court of Appeals’ decision in Brooke S.B. v. Elizabeth A.C.C. (establishing the circumstances under which a non-biological parent can seek to assert parental rights), the fact that Ming and Marco were married, and had lived as a family with the child, conclusively established Ming’s right to contest the adoption.

This decision is a welcome development for same-sex couples concerned about establishing their parental rights—particularly where, as here, the child is not a DNA match to both parents.  It also demonstrates the importance of planning in the event of a separation—both for children and the parents who want to remain a part of their lives.