On New York’s Strong Presumption of Legitimacy

June 17, 2009

A few notes on New York’s strong presumption of legitimacy of a child born within a marriage.  It can have some counter intuitive outcomes so it is important to understand how strong it is.

In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals directly addressed the application of equitable estoppel in paternity and support proceedings… The court concluded that both the statute and case law required that the best interests of the child controlled whether a person was required to continue support payments, even if it was belatedly determined that he was not the biological parent. “The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. . . . [T]he issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.” Alexander Korotkin, Paternity and Equitable Estoppel, Rochester Family Lawyer

Indeed, the presumption of legitimacy of a child born in marriage is a strong and pervasive tendency in New York family law.  For  example the case of Laura WW. v Peter WW. decided last year by the Appellate Division, Third Department did not look to legislation to reach its conclusion:

Specifically, Domestic Relations Law § 73, which creates an irrebuttable presumption of paternity when certain conditions are met, states:

“Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes. . . .

“The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he [or she] had rendered the service.”

Laura WW. v Peter WW.

Section 73 is not enough in and of itself, according to the court:

Given the clear and specific language making written consent a prerequisite to invoking the statute’s protections, we cannot find that the statute applies where, as here, it is conceded that the husband did not consent in writing to the procedure. Laura WW. v Peter WW.

According to commentator Daniel Clement:

The Court relied on New York’s strong presumption that a child born to a marriage is the legitimate child of both parents. In addition the court announced that it would “follow the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by[artificial insemination, shifting the burden to the husband to rebut the presumption by clear and convincing evidence.”
Daniel Clement, Husband Required to Pay Child Support for Artificially Inseminated Child, NY Divorce Report


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