## Facts

- Jessica ZZ and Nichole ZZ were married before the child’s birth in August 2014.
- The child was conceived through informal at-home insemination using sperm donated by Christopher YY, whom the couple had known only briefly.
- Before insemination, the parties signed an informal written agreement (without legal advice) in which the donor disclaimed paternity and custody/visitation, and the couple disclaimed child support.
- After the child’s birth, the child lived with Jessica and Nichole as a two-parent household and used Nichole’s surname.
- A dispute later arose over the donor’s access to the child; the donor’s partner destroyed the only copy of the agreement.
- In April 2015, the donor filed petitions to establish paternity (Family Court Act article 5) and for custody.
- Family Court denied the mothers’ motion to dismiss and ordered genetic testing under Family Court Act § 532(a), finding sufficient allegations of paternity and no best-interests bar.
- Jessica appealed by permission; Nichole was joined as a respondent.

## Issues

1. Whether the presumption of legitimacy for a child born during a marriage applies equally to a same-sex married couple, making the non-gestational spouse a presumptive parent.
2. Whether, under Family Court Act § 532(a), genetic testing should be denied as contrary to the child’s best interests, requiring dismissal of the donor’s paternity petition.

## Decision

- The Appellate Division reversed the Family Court order.
- The court held the marital presumption applies to same-sex marriages, treating Nichole as a presumptive parent of the child born during the marriage.
- The court granted the motion to dismiss the paternity petition and vacated the order directing genetic testing.
- The court concluded genetic testing would be contrary to the child’s best interests because it would destabilize the established marital family and the child’s parental relationships.

## Legal Principles

- A child born during a valid marriage is presumed to be the child of the marriage, and that presumption applies equally to same-sex and different-sex marriages.
- Under Family Court Act § 532(a), genetic testing may be denied when, applying equitable principles (including the marital presumption), testing is contrary to the child’s best interests.
- In assessing best interests in this context, courts may consider the stability of the child’s existing family unit, the child’s established parent-child relationships, and the parties’ intent and expectations surrounding assisted reproduction.

## Conclusion

The appellate court applied the marital presumption to a same-sex marriage and used the best-interests limitation in Family Court Act § 532(a) to deny DNA testing, dismissing a known donor’s paternity claim to protect the child’s established two-parent marital family.


Matter of Christopher YY. v. Jessica ZZ., 159 A.D.3d 18, 69 N.Y.S.3d 887 (N.Y. App. Div. 3d Dep’t 2018)