Parental Rights after Marriage Equality Act

In July of 2011 New York State passed the Marriage Equality Act granting same sex couples the right to marry in the state of New York. Part of the legislature stayed in pertinent part that,

It is the intent of the legislature that the marriage of same-sex and different sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage. The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, of which in any other way may be inconsistent with this act, be construed in a gender- neutral manner or in any way necessary to effectuate the intent of this act.

Based on the foregoing it is arguable that the legislature intended to afford same-sex couples all the same rights as a heterosexual couple, including the rights as a parent to a child conceived by artificial means during the marriage. Domestic Relations Law 73 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, birth child of the husband and wife for all purposes.

Therefore the spouse of the biological parent of the child conceived during marriage should have parental rights and no longer have to adopt that child. However, while we wait for the appellate division to address the issue "standing," for the nonbiological parent/spouse to be heard in court on her parental rights, the law remains unclear.

A parent may also be equitably estopped from denying the parental rights of a child to a third party where the moving party demonstrates "extraordinary circumstances." Similarly, if the parties were legally married in another state, New York State may defer to the law of the state where the parties were married to determine the rights of the non-biological parent.

If you are in a same-sex marriage and are concerned about protecting your rights, please contact our office to speak to a lawyer today.

Categories: Divorce