Sara Stout Ashcraft, The Daily Record Newswire
With the passage of same sex marriage laws in many states and the decision of the United States Supreme Court in Obergfell v. Hodges (575 U.S. ____, 2015), certain legal issues involving same sex couples are now coming before the state courts. A recent decision by the Second Department Appellate Division provides a good analysis of issues of parentage of children in same sex marriages. In Kelly S. v. Farah M. (2016), the Second Department carefully worked its way through history and law-of both New York and California - to arrive at its holding.
Facts
In 2000, Californians Kelly S. and Farah M. commenced a romantic partnership, and, in 2004, registered as domestic partners in California. That same year the parties wanted to start a family and requested Anthony S., a close friend of both parties, to be the sperm donor for the conception.
Anthony agreed to do so, and, through artificial insemination, Kelly S. became pregnant and gave birth to I.S. in 2005. Farah M. legally adopted I.S. Later the parties decided to have a second child and again asked Anthony S. to be the sperm donor, to which he agreed.
After performing the artificial insemination at home (without a doctor), Farah M. became pregnant and gave birth to Z.S. No artificial insemination contract was signed for this second pregnancy, but Z was given Kelly S.'s surname and Kelly S. was named as a parent on Z.'s birth certificate.
The parties were legally married in California in 2008, and that year they decided to have their third child. Farah M. again artificially inseminated herself with Anthony S.'s sperm, became pregnant, and gave birth to E.S. As with Z.S., E.S. was given Kelly S's surname and she was named as a parent on E.S.'s birth certificate. Around 2012, the parties relocated to New York with their three children.
However, the parties later separated and Kelly S. moved to Arizona, while Farah M. and all three children remained in New York.
In 2014, Kelly S. filed a petition in the Suffolk County Family Court, requesting visitation with the two younger children. Kelly S. claimed in her petition that she was the mother of the children, that the parties had been married in California, that the children had been given her surname, that she was named on their birth certificates, and that she had helped raise the children when the parties were together. Farah M. moved to dismiss Kelly S.'s petition, claiming that Kelly S. did not have standing, and, in the alternative, moved for a hearing on the standing issue.
Farah M. also sought to join Anthony S. as a necessary party, and she also filed a paternity petition against him. Farah M.'s position rested on her allegations that as Z.S. was born before the parties married and Kelly S. had never adopted him.
Although E.S. was born during the marriage, Farah M. claimed that because E.S. was not conceived by artificial Insemination performed by a physician and there was no agreement authorizing the procedure, under New York law Kelly S. did have standing as a parent. Farah M. sought to overcome the presumption of legitimacy of a child of a marriage by arguing that E.S. was conceived by Anthony S.'s sperm and that Anthony S. had maintained a parental relationship with E.S.
Analysis
The Second Department explored each relevant issue in depth, analyzed relevant New York and California statutory and case law, and came to the conclusions that:
- Under California law, a parent of a child born of a registered domestic partnership is accorded the same rights as a parent of a child born during a marriage, so Kelly S. is a parent of Z.S.
- Under California law, as E.S. was born after the parties married in California, K.S. is E.S.'s parent.
- Under both California and New York law, Kelly S. is not precluded from being recognized as a parent of Z.S. and of E.S. simply because Farah M. inseminated herself with donor semen rather than having a physician perform the procedure and with no contract regarding the insemination, although those circumstances would prevent the presumption of parentage with artificial insemination from being relied upon.
- Farah M.'s petitions to establish paternity of the children by Anthony S. were filed only in an attempt to defeat Kelly S.'s visitation petition, and could not rebut the presumption of parentage for Kelly S.
- The facts that Kelly S. was named as a parent on both children's birth certificates, that the children were given her last name, and that the parties reared the children together until the parties separated support the presumption of parentage.
- Kelly S. has standing to request visitation with Z.S. and E.S.
The Second Department affirmed the Family Court's grant of standing to Kelly S. to move forward with her visitation petition.
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Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.
Published: Fri, Apr 29, 2016
