Wendy G-M. v. Erin G-M.

• Decision Date: 07 May 2014
• Citation: 45 Misc.3d 574,2014 N.Y. Slip Op. 24122,985 N.Y.S.2d 845
• Parties: WENDY G–M., Plaintiff, v. ERIN G–M., Defendant.
• Court: New York Supreme Court

45 Misc.3d 574
985 N.Y.S.2d 845
2014 N.Y. Slip Op. 24122

WENDY G–M., Plaintiff,
v.
ERIN G–M., Defendant.

Supreme Court, Monroe County, New York.

May 7, 2014.

[985 N.Y.S.2d 846]

Joanne Best, Esq., Brockport, N.Y., for Plaintiff.

Jeanne Colombo, Esq., Rochester, N.Y., for Defendant.

[985 N.Y.S.2d 847]

RICHARD A. DOLLINGER, J.

In this divorce action, a child conceived from artificial insemination was born during the marriage. The court must now determine whether the spouse who did not give birth to the child (the non-biological spouse), is a parent of the child under New York's longstanding presumption that a married couple are both parents of a child born during their marriage.

The birth mother and her spouse were married in a civil ceremony in Connecticut, before New York enacted its Marriage Equality Act (“MEA”). ¹ The couple decided to have a child and in October 2011, they both signed a consent form agreeing to artificial insemination procedures. In the consent form, the birth-mother authorized the physician to perform artificial insemination on her, and the spouse requested the doctor to perform the procedure. The document also reads:

We declare that any child or children born as a result of a pregnancy following artificial insemination shall be accepted as the legal issue of our marriage.
The document is signed by the birth-mother, the spouse, and the physician, but there is no acknowledgment to the signatures. The spouse paid for the sperm donation and executed a consent form that allowed the purchased sperm to be used for the artificial insemination of the birth-mother. Both parties underwent artificial insemination for almost two years, until the procedure succeeded on the birth-mother; the spouse then discontinued her treatments.

The fertility clinic records demonstrate that the birth-mother and the spouse were both involved in appointments. The spouse attended the pre-birth classes, including breast feeding, baby care, and CPR classes. The spouse participated in the baby showers. The birth-mother celebrated the impending birth through a Facebook posting which said:

This is our year!!! Our daughter will lawfully have two mommies when she arrives and a family that's recognized wherever we go in the U.S. I love you!

When you go through fertility and have a partner, they have to sign off and agree to the fertility treatments so that there is NO question that you've both agreed to have a child.

The spouse was present at the birth of the child and the couple jointly decided the name of the child. When the hospital officials asked for information on the parents, both participated in the discussions and the birth mother acknowledged that the spouse was the parent of the child. The child was given a hyphenated surname of the two women, with the spouse's name listed first.² The birth certificate for the child lists both as the parents of the child. SeeNew York Public Health Law § 4103(3)

[985 N.Y.S.2d 848]

After the birth of the child, citing marital trouble, the spouse left the household, in her words, to “not cause undue stress or potential other problems.” The child only lived in the same household with the two women for one week before they established separate households. The action for divorce was commenced by the birth-mother in December 2013, less than then three months after the birth of the child. Before and after commencement, the birth-mother would not permit her spouse to visit with the child. The spouse then filed the instant request for a variety of relief, including access to the child, maintenance, and attorney fees.

In resolving this dispute, there are two paths to be followed, each with intriguing twists and turns. The first runs through the state Legislature and the various threads of the Domestic Relations Law and the Family Court Act. The second runs through the common law, with a lengthy stop over at the Court of Appeals opinion Debra H. v. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d 184 (2010), which confronts the issue of children of same sex relationships albeit in a different, pre-Marriage Equality Act context. At the intersection of these two paths, one bright light illuminates both: New York's public policy strongly favors the legitimacy of children, and that “the presumption that a child born to a marriage is the legitimate child of both parents is one of the strongest and persuasive known to law.” In re Estate of Fay, 44 N.Y.2d 137, 141, 404 N.Y.S.2d 554, 375 N.E.2d 735 (1978) (there is an established legal presumption that every person is born legitimate); Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 (1930); Hynes v. McDermott, 91 N.Y. 451, 458 (1883); Matter of Matthews, 153 N.Y. 443, 447, 47 N.E. 901 (1897); Murtagh v. Murtagh, 217 A.D.2d 538, 539, 629 N.Y.S.2d 78, (2nd Dept.1995); T.P. v. B.P., 41 Misc.3d 1232(A), 2013 WL 6211262 (Sup.Ct., Kings Cty.2013). The presumption follows a common law development:

At common law, parentage derived from two events, a child's birth to its “mother,” and the mother's marriage to a man. Children born out-of-wedlock had only one legal parent, their birth mother. Recognizing the many advantages that flowed to children from having two parents, legislatures enacted filiation or paternity proceedings to confer legal parentage on non-marital biological/genetic fathers, a status which carries support and other obligations.

In re Adoption of Sebastian, 25 Misc.3d 567, 879 N.Y.S.2d 677, 679 (Sur.Ct.2009).³

The common law presumption of “legitimacy” to children born in a marriage finds a corollary in both the Domestic Relations Law, and 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.” DRL § 24(1).⁴

[985 N.Y.S.2d 849]

Section 417 of the Family Court Act, demarcated as the “child of ceremonial marriage” provides:

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.
Family Court Act § 417.⁵ Both of these statutes, the former enacted in 1969, and the later in 1962, pre-date the increasing availability of artificial insemination and the existence of legally-recognized same sex unions and marriages. Both statutes were designed as tools to link reluctant married fathers to their offspring, regardless of whether the subject marriage was technically invalid under the strictures of New York law.⁶ The statutes only have applicability in opposite sex marriages as evidenced by the fact that the usual technique to confirm parentage is a genetic test of the putative father which establishes an irrefutable genetic link between the child and the father. SeeFamily Court Act §§ 418 and 516–a (b)(I); Matter of Monroe County Dept. of Human Servs. v. Joshua B., 25 Misc.3d 1238(A), 2009 WL 4673757 (Fam.Ct. Monroe Cty.2009) (a GMT [genetic marker test] is the norm in a support proceeding where there is a question about who is the father). The presumption of paternity under both the Family Court Act and the Domestic Relations Law may be rebutted by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy. Barbara S. v. Michael I., 24 A.D.3d 451, 451, 805 N.Y.S.2d 425 (2nd Dept.2005); Matter of Walker v. Covington, 287 A.D.2d 572, 731 N.Y.S.2d 485 (2nd Dept.2001).

Importantly, Section 24 of the Domestic Relations Law, Section 417 of the Family Court, and the common law presumption regarding children born in marriages use the phrase “legitimacy” to describe the effect of marriage on a child, a phrase which in the 19th and early 20th centuries was an important facet of child's rights to inherit property. In re Leslie's Estate, 175 A.D. 108, 161 N.Y.S. 790 (1st Dept.1916); In re Letters of Admin., 150 A.D. 681 (1st Dept.1912). But, while the word “legitimate” may be somewhat archaic, the intent of these statutes, and the common law presumption, is unambiguous: a child born in a marriage is the child of the couple. Strangely, despite the importance of the term “parent” in both the Family Court Act and the Domestic Relations Law, this term is not defined in either statute or under the common law. The lack of that definition has confounded New York courts for several decades, especially so since the advent of innovations in artificial insemination, and perhaps even more so since the enactment of New York's Marriage Equality Act. In the face of legislative silence, New York courts have struggled to define this important facet of modern life. As a starting point, under the common law theory announced in Matter of Findlay, the phrase “parent” does not contain any gender-specific application. The Court of Appeals, even in 1930, used the phrase “parents” when describing the consequence of a child being born during a marriage.

[985 N.Y.S.2d 850]

Matter of Findlay at 10, 170 N.E. 471 When Matter of Findlay is read broadly, the Court of Appeals choice of the word “parents” suggests that the presumption for children born during a marriage is fulfilled when every child has two legitimate parents to provide for them, regardless of their respective sex.

One other section of the Domestic Relations Law provides further guidance in deciding parental status in this case. DRL § 70(a) permits only a “parent” to apply for custody of a child. The term is undefined in § 70 and, as the later course of this opinion indicates, the Court of Appeals has refused to interpret that term in a sweeping manner, as Matter of Findlay might suggest. Four years ago, the Court of Appeals in Debra H. v. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d 184 (2010) cautioned not to overstep common law prerogatives in dealing with any alteration of the definition of...