On Jan. 25, 2018, the Appellate Division, Third Department, issued a significant decision in Matter of Christopher YY v. Jessica ZZ, 2018 NY Slip Op 00495. Underlying the court's determination is the conundrum which it describes as follows: “Application of existing case law involving different-gender spouses, addressing whether the presumption [of legitimacy] 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' [citations omitted].”

Respondents Jessica ZZ (the “mother”) and Nichole ZZ (the “wife”) were married at the time of the conception of the child, who was born in August 2014. The child was conceived by means of artificial insemination, utilizing sperm donated by petitioner, Christopher YY. A written, self-created agreement between petitioner and Respondents preceded the impregnation of the mother (Jessica ZZ). By the terms of the agreement, apparently put together by the parties without the assistance of an attorney: Petitioner agreed to donate his sperm to enable Respondents to have a child together; petitioner waived any claims to paternity of the child, along with any rights that he might have to custody or visitation; and, Respondents waived any claim to child support from petitioner. At 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 first met the child when she was a month or two old.

At a point in time following the birth of the child, a dispute arose over petitioner's access to the child, and petitioner filed a paternity petition in April 2015, sought a paternity test, and later filed a petition for custody. The mother and the wife moved to dismiss the petition without the paternity test based on the “presumption of legitimacy” and the “doctrine of equitable estoppel.” The attorney for the child opposed the request for a paternity test. After a hearing, the Family Court denied the motion to dismiss and ordered genetic testing, and the mother appealed.

The Third Department in an opinion by Justice Robert C. Mulvey began its analysis by noting the “best interests exception” to the requirement for genetic testing requested under Family Court Act (FCA) §532 (a), where a court can hold that the testing is not in the child's best interests due to res judicata, equitable estoppel or the presumption of legitimacy of a child “born to a married woman.” It then went on to stress that “biology is not dispositive in a court's paternity determination,” citing case law dealing with paternity by estoppel, the irrebuttable presumption of paternity, the presumption of legitimacy of a child born to a married couple, etc.

Recognizing that this question of parentage of children of same sex marriages is an “evolving area of law,” the court went on to conduct what it termed a “reexamination of the traditional analysis governing the presumption of legitimacy (see, e.g., Matter of Rooked S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 13, 25-28).” The court commenced its analysis by opining that because the enactment of the Marriage Equality Act, Domestic Relations Law (DRL) §10-a, post-dated the “common law and statutory presumptions of legitimacy” a “reconsideration” of those presumptions was required. The detailed reconsideration that followed is a searching analysis of the challenging impact of the changing concepts and definitions of “parent” and “child” that brings the state of the law in New York to the point of fully embracing the rights of same sex couples to create a family unit replete with legitimate children who are the biological progeny of one but not of both spouses.

The court's analysis then moved to a determination that the presumption of legitimacy had not been rebutted. In doing so, the court found “that it must be true that a child born to a same-gender married couple is presumed to be their child and … that the presumption of parentage is not defeated solely with proof of the biological fact that … a child cannot be the product of same-gender parents. In what was tantamount to a constitutional equal protection determination combined with a “best interests of the child” argument, the court went on to hold “If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification. * * * we discern no facts in this record on which to conclude that petitioner established, by clear and convincing evidence, that the child is not entitled to the legal status as the product of the marriage.”

Before turning to its explanation of why the doctrine of equitable estoppel was applicable to this case, the Appellate Division rejected the petitioner's argument that there had been non-compliance with the provision of DRL §73, which, when adhered to, “creates an irrebuttable presumption of parentage for a married couple who utilize formal [artificial insemination] performed by medical personnel …” The court found that the fact that merely because DRL §73 did not establish the wife's rights to parentage as the spouse of the mother is not dispositive of whether those rights can be determined by other means. In doing so, the court reflected that it had previously found that the common law rule which preceded the adoption of DRL §73 was that a child born of “consensual” artificial insemination “during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child of the same marriage” and that this “child is entitled to that status regardless of the gender of her parents.”

Lastly, the Appellate Division agreed with the mother and the wife that the doctrine of equitable estoppel should be applied to prevent the petitioner from claiming paternity. This final analysis was grounded “exclusively on the best interests of the child” and not the “equities” favoring the adults involved in the proceedings. The Third Department expressly rejected the petitioner's demand for genetic testing, finding that he had failed to meet his burden of proving that it would be in the child's best interests to order testing. In so holding, the court relied on the facts that: “at the time that petitioner voluntarily donated his sperm to respondents, he had engaged in several discussions with them and his partner about donating sperm to enable respondents to have a child together. He unequivocally understood that he was doing so to permit the mother and the wife to be the sole parents of any child conceived, aware that they wanted to raise the child together and planned to marry, as they did prior to the birth of the child. Most significantly, petitioner had no expectation of parentage in any form; indeed, he had expressly disavowed any such parental intention, rights or responsibilities and took steps to preclude respondents from later pursuing him for paternity or child support.” The court also relied on the facts that petitioner's initial conduct surrounding the child's birth evinced an intent to forego any parental rights or responsibilities—e.g., no involvement in prenatal care, absence at the birth, unaware of the date of birth, did not attend medical appointments, failed to see the child for a month or two after the birth, never paid child support, never acknowledged paternity, etc. Significantly, the petitioner offered no testimony that he ever expected to assume or asserted a parental role even though he was the sperm donor.

After further discussion, the Third Department concluded that granting the request of testing would disturb the “bonded relationship” that the child had formed with both mothers, that to do otherwise would “disrupt, if not destroy, this family unit and nullify the child's established relationship with the wife, her other mother. Testing in these circumstances exposes children born into same-gender marriages to instability for no justifiable reason other than to provide a father-figure for children who already have two parents. This would be indefensible …”

Although this case is a significant step forward by our courts to refine the definitions and concepts of “parent” and “child” now that our Legislature has redefined the societal concept of family by recognizing the right of same sex individuals to marry one another and form a family, and, while certainly not the first case to address these issues (see, e.g., Matter of Maria-Irene D., 2017 NY Slip Op 06716 (1st Dept. Sept. 28, 2017), it is a harbinger of the kinds of issues that will be addressed in years to come as the evolution of our concept of “family” is refined and redefined.

Alton L. Abramowitz is a senior partner at Mayerson Abramowitz & Kahn, which limits its practice to matrimonial and family law. He was national President of the American Academy of Matrimonial Lawyers (2013) and is a past chair of the New York State Bar Association's Family Law Section (2014-2015).