Christopher YY. v. Jessica ZZ.

• Decision Date: 25 January 2018
• Docket Number: 522068
• Citation: 69 N.Y.S.3d 887,159 A.D.3d 18
• Parties: In the Matter of CHRISTOPHER YY., Respondent, v. JESSICA ZZ., Appellant, and Nichole ZZ., Respondent.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 18

69 N.Y.S.3d 887

In the Matter of CHRISTOPHER YY., Respondent,

v. JESSICA ZZ., Appellant,andNichole ZZ., Respondent.

522068

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 19, 2017

Decided and Entered: January 25, 2018

Ouida F. Binnie–Francis, Elmira, for appellant.

Pamela B. Bleiwas, Ithaca, for Christopher YY., respondent.

Lisa A. Natoli, Norwich, for Nichole ZZ., respondent.

Michelle E. Stone, Vestal, attorney for the child.

Before: Egan Jr., J.P., Devine, Clark, Mulvey and Rumsey, JJ.

OPINION AND ORDER

Mulvey, J.Appeal, by permission, from an amended order of the Family Court of Chemung County (Tarantelli, J.), entered November 23, 2015, which, in a proceeding pursuant to Family Ct Act article 5, among other things, denied respondents' motion to dismiss the petition.

Respondent Jessica ZZ. (hereinafter the mother) and respondent Nichole ZZ. (hereinafter the wife) were married prior to the mother giving birth to the subject child in August 2014. It is undisputed that the child was conceived, on the second attempt, through an informal artificial insemination process performed in respondents' home using sperm donated by petitioner. The parties, who had known one another for a short time through family, had discussed respondents' desire to have a child together, and petitioner volunteered to donate his sperm for this purpose. The parties agree that petitioner, with his partner present, knowingly provided his sperm to assist respondents in having a child, and that the wife performed the insemination. Prior to the insemination, the parties had entered into a written agreement drafted by petitioner that was signed by respondents and petitioner in the presence of his partner. Pursuant to that written agreement, which was entered into without formalities or the benefit of legal advice, petitioner volunteered to donate his sperm so that respondents could have a child together, expressly waived any claims to paternity with regard to any child conceived from his donated sperm and further waived any right to custody or visitation, and respondents, in turn, waived any claim for child support from petitioner.¹ At some point after the birth of the child, the parties disagreed on petitioner's access to the child, and his partner subsequently admitted in sworn testimony that she had destroyed the only copy of that agreement. The legality of that agreement is not before this Court, although it is relevant to the parties' understanding, intent and expectations at the time that petitioner donated his sperm and the wife impregnated the mother (compare Laura WW. v. Peter WW. , 51 A.D.3d 211, 213–214, 856 N.Y.S.2d 258 [2008] ). Upon her birth, the child was given the wife's surname, and respondents lived together as a family with the child and the mother's other two children. Petitioner did not see the child until she was one or two months old.

In April 2015, petitioner filed this paternity petition (see Family Ct Act § 522 ) and, later, a petition seeking custody of the child. The mother opposed the request for a paternity test, requested a stay of any testing and a hearing, and apparently filed a cross petition for custody. At Family Court's direction, the wife was added as a party respondent in the paternity proceeding and an attorney for the child was assigned to represent the child, who was over seven months old when the paternity petition was filed. The mother moved to, among other things, dismiss the paternity petition based upon both the presumption of legitimacy accorded to a child born of a marriage (see Domestic Relations Law § 24[1] ) and the doctrine of equitable estoppel, and the wife also asserted those grounds in opposition to the paternity petition.² An evidentiary hearing was held on the paternity petition at which all parties, who were represented by counsel, testified, and respondents and the attorney for the child opposed the request for a paternity test. Family Court denied the motion to dismiss and ordered genetic testing. With permission of this Court, the mother appeals.³

Pursuant to Family Ct Act § 532(a), when a paternity petition is filed, Family Court, "on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests." However, this directive is qualified by an exception providing that "[n]o such test shall be ordered ... upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman" ( Family Ct Act § 532[a] ; see Family Ct Act § 418[a] ). Thus, where, as here, paternity is in issue, Family Court is required to order biological tests unless it relies upon the best interests of the child exception and, if so, it must "justify its refusal to order [such] tests" (Matter of Shondel J. v. Mark D. , 7 N.Y.3d 320, 329, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006];see Matter of Suffolk County Dept. of Social Servs. v. James D. , 147 A.D.3d 1067, 1069, 48 N.Y.S.3d 248 [2017] ; Matter of Tralisa R. v. Max S. , 145 A.D.3d 727, 727–728, 43 N.Y.S.3d 427 [2016] ). Even if the presumption of legitimacy applies, the court must proceed to the best interests analysis before deciding whether to order a test (see Matter of Mario WW. v. Kristin XX. , 149 A.D.3d 1227, 1228, 51 N.Y.S.3d 678 [2017] ). To that end, the "paramount concern" in a proceeding to establish paternity is the "best interests of the child," and Family Court proceeded properly by holding a hearing addressed to that determination (Matter of Juanita A. v. Kenneth Mark N. , 15 N.Y.3d 1, 5, 904 N.Y.S.2d 293, 930 N.E.2d 214 [2010] [internal quotation marks and citation omitted] ). Importantly, biology is not dispositive in a court's paternity determination (see id. at 3, 904 N.Y.S.2d 293, 930 N.E.2d 214 ["biological father may assert an equitable estoppel defense in paternity and child support proceedings"]; Matter of Shondel J. v. Mark D. , 7 N.Y.3d at 326, 330, 820 N.Y.S.2d 199, 853 N.E.2d 610 [paternity by estoppel]; Matter of Carlos O. v. Maria G. , 149 A.D.3d 945, 946–947, 52 N.Y.S.3d 392 [2017] [test denied although parties agreed the petitioner is the biological father]; Matter of Melissa S. v. Frederick T. , 8 A.D.3d 738, 738–739, 777 N.Y.S.2d 774 [2004], lv dismissed 3 N.Y.3d 688, 785 N.Y.S.2d 9, 818 N.E.2d 650 [2004] ; Matter of Richard W. v. Roberta Y. , 240 A.D.2d 812, 814, 658 N.Y.S.2d 506 [1997] ["resolution of the estoppel issue in (the married couple's) favor would have rendered the results of (the putative father's) blood test irrelevant"], lv denied 90 N.Y.2d 809, 664 N.Y.S.2d 271, 686 N.E.2d 1366 [1997] ; see also Family Ct Act §§ 532[a] [best interests test]; 418[a] [same]; Domestic Relations Law § 73 [irrebuttable presumption of paternity]; Matter of Joshua AA. v. Jessica BB. , 132 A.D.3d 1107, 1108, 19 N.Y.S.3d 116 [2015] ).

Respondents argue that since the child was born to the mother while they were married, they are entitled to the presumption of legitimacy afforded to a child born to a marriage.⁴ We agree. Domestic Relations Law § 24, entitled "Effect of marriage on legitimacy of children," expressly provides, as relevant here, that "[a] child ... born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage ... is the legitimate child of both birth parents" ( Domestic Relations Law § 24 [1 ]; see Family Ct Act § 417 [entitled "Child of ceremonial marriage"] ).⁵ Domestic Relations Law § 24 and Family Ct Act § 417 codify the common-law presumption of legitimacy (see Matter of Findlay , 253 N.Y. 1, 170 N.E. 471 [1930] [adopting an evidentiary presumption]; see also Michael H. v. Gerald D. , 491 US 110, 124–128, 109 S.Ct. 2333, 105 L.Ed.2d 91 [1989] ).⁶ As the child was born to respondents, a married couple, they have established that the presumption of legitimacy applies, a conclusion unaffected by the gender composition of the marital couple or the use of informal artificial insemination by donor (hereinafter AID) (see Matter of Maria–Irene D. [Carlos A.–Han Ming T. ], 153 A.D.3d 1203, 1205, 61 N.Y.S.3d 221 [2017]; Matter of Beth R. v. Ronald S. , 149 A.D.3d 1216, 1217, 51 N.Y.S.3d 244 [2017] ; Matter of Kelly S. v. Farah M. , 139 A.D.3d 90, 100–101, 28 N.Y.S.3d 714 [2016]; Laura WW. v. Peter WW. , 51 A.D.3d at 215–216, 856 N.Y.S.2d 258; Wendy G–M. v. Erin G–M. , 45 Misc.3d 574, 593, 985 N.Y.S.2d 845 [Sup Ct., Monroe County 2014] ).⁷

The presumption of legitimacy is rebuttable, however, "upon clear and convincing evidence excluding the [spouse] as the child's [parent] or otherwise tending to prove that the child was not the product of the marriage" ( Matter of Beth R. v. Ronald S. , 149 A.D.3d at 1217, 52 N.Y.S.3d 515 ).⁸ In cases involving spouses of different genders, the presumption has been rebutted with proof that a husband did not have "access to" his wife at the time that she conceived a child and he acknowledged that he was not the biological father, combined with testimony that the child was conceived during a trip with the putative father with whom his wife was in a monogamous relationship (see id. ; see also Matter of Jason E. v. Tania G. , 69 A.D.3d 518, 519, 893 N.Y.S.2d 542 [2010] ).

Application of existing case law involving different-gender spouses, addressing whether the presumption has been rebutted, to a child born to a same-gender married couple is inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically "the product of the marriage" ( Matter of Beth R. v. Ronald S. , 149 A.D.3d at 1217, 52 N.Y.S.3d 515 ). We have recognized that this "is an evolving area of law" (Matter of Mario WW. v. Kristin XX. , 149 A.D.3d at 1228 n. 1, 51 N.Y.S.3d 678). This changing legal and social landscape requires...