Same-Sex Marriages – What Rights Does a Non-Biological Parent Have?

Same-Sex Marriages - What Rights Does a Non-biological Parent Have? by Joshua Katz

{2:50 minutes to read} In same-sex marriages, no presumption of legitimacy arises. 

New York Law states that a child conceived during a marriage is presumed to be legitimate. However, all presumptions are rebuttable, and a recent ruling by the Appellate Division holds that there is no presumption in cases of same-sex marriages.  

In the case of a heterosexual marriage, the husband is presumed to be the father of any children born to his wife. This presumption could be rebutted by evidence such as an affidavit stating that he had no access; meaning there were no sexual relations between his wife and him during the relevant time period. Unless the child is old enough and believes the husband to be his father (which could equitably stop any action to disprove paternity), the husband would then be entitled to a genetic marker tests or DNA paternity tests to rule him out as the presumptive father. Any other potential fathers could then step forward to claim paternity and be named on the birth certificate.

An interesting decision on this subject was handed down from the Appellate Division, Second Department, in May. In Paczkowski vs. Paczkowski, the biological mother, Jaime Paczkowski, faced a petition for joint custody from her spouse, Jann Paczkowski.   

In Paczkowski, the Court found that:

  1. The presumption of legitimacy is a biological presumption, not a legal status, and there is no possibility that the non-gestational spouse of a same-sex marriage could be the biological parent.
  2. A non-parent can seek to displace the parent’s rights only if the parent relinquished their rights due to surrender, abandonment, negligence, unfitness, or other extraordinary circumstances.
  3. In the absence of the circumstances above, the non-biological parent would need to formally adopt  the child in order to establish parental rights.
  4. As she had not adopted the child, Jann Paczkowski had no standing as a parent and was not awarded joint custody.

It is presumed that having two parents is best for children, which is why the presumption of legitimacy is a such a difficult burden to overcome. As same-sex marriages multiply across the country, each state will face difficult questions like the ones in Paczkowski. How has the new marriage landscape affected you?

Contact us today if you have questions or concerns.

Plaine & Katz, LLP
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