Law Office of Angela Barker LLC

In New York
646-415-8883
In New Jersey
201-336-0352
  • Home
  • Firm Profile
  • About Angela
  • Areas of Practice
  • Legal Fees
  • Contact Us
  • Case Strategy Session
    • Directions
  • Testimonials
  • Blog
  • MyCase Client Portal

The Presumption of Legitimacy Has Gone Way past its Sell by Date

September 21, 2017 By

At one time if a child was born outside of the marriage, the child was considered illegitimate.  An illegitimate child had no rights to his father’s name.  He could not inherit from his father, could not get support from his father and to the eyes of the world the child was less than a child who was just fortunate enough to be born to two parents who were married.

Today, many of the negatives of being illegitimate have been abolished.  Family lawyers and courts now avoid the use of the word “illegitimate” when referring about children.  Non-marital children can now inherit, they can get child support from both parents and they can have relationships with both parents.  However, every once in a while, the presumption of legitimacy is relied upon to deny biological parents their rights and responsibilities of parenthood. Thankfully, many courts make valiant attempts to distinguish deserving cases before them in a way whereby the precedent will not apply. This is what happened in the case Matter of Q.M. v. B.C. NY Sip Op 24345 (Oct. 2014).

In this case, Mr. M. filed a petition for the court to find that he was the biological father of the child J.C.  However, J.C.’s mother, B.C. (Mrs. C.) was married at the time to her wife J.S. Not wanting Mr. M. to have rights to J.C., Mrs. C. asked the court to rely on the “presumption of legitimacy” and dismiss Mr. M.’s petition.  The “presumption of legitimacy” states that a child “born during a marriage was fathered by the husband.”  J.C.’s mom argued even though her spouse is a female and could not father a child, this presumption of legitimacy should be extended to include same sex couples.

The court rejected this argument and found that the purpose of the presumption of legitimacy was “mainly applied to prevent recalcitrant husbands or former husbands from avoiding their responsibilities to support children born to their wives or former wives.”

However, in this case where the marriage is between people of the same sex, the court did not have to follow the marital presumption and therefore the court allowed Mr. M.’s paternity proceeding to go forward.

Under the facts of this case, I believe that the court made a good decision.  Ms. C. admitted that she had a sexual relationship with Mr. M. during her marriage, she was not involved with any other man and J.C. “was not born as the result of artificial insemination.”  She also admitted to allowing Mr. M. to see J.C. on two occasions before Mr. M. filed his paternity petition. Moreover, Mr. M. filed his petition to established paternity less than a year after J.C. was born.

But this outcome was based on the fact that New York had not yet expanded its definition of a parent beyond biological, birth or adoptive parents.  If this case had been decided after New York expanded its definition of a parent to include people in same sex marriages, then Mr. M. may have been precluded from proving that he was the child’s biological father.

With the expansion of the laws that give many protections to non-marital children and the widespread use of DNA testing, it is time to get rid of the marital presumption as an arcane legal precedent that has long outlived it usefulness.

Filed Under: Blog: The Barker Chronicles

Contact Us
New York Office

1325 Avenue of the Americas
28th Floor
New York, NY 10019

Ph: 646-415-8883
Fax: 646-395-9562

New Jersey Office

411 Hackensack Ave
Ste 200
Hackensack, NJ 07601

Ph: 201-336-0352

  • Facebook
  • Instagram
  • LinkedIn
  • Twitter
  • Home
  • Firm Profile
  • About Angela
  • Areas of Practice
  • Legal Fees
  • Contact Us
  • Case Strategy Session
  • Testimonials
  • Blog
  • MyCase Client Portal

Copyright © 2022 · Law Office of Angela Barker LLC & Altrumedia, LLC · All Rights Reserved · Attorney Advertising