## Facts

- Wendy G-M. and Erin G-M. were lawfully married and lived in New York.
- During the marriage, the spouses jointly decided to conceive a child by artificial insemination and agreed both would be the child’s mothers.
- Wendy underwent artificial insemination and gave birth during the marriage.
- The child received a hyphenated surname combining both spouses’ surnames, and the birth certificate listed both Wendy and Erin as parents.
- The parties separated about one week after the birth.
- Wendy filed for divorce within months of the birth and denied Erin access to the child.
- Erin sought visitation, spousal maintenance, and attorney’s fees in the divorce action.
- Wendy opposed visitation on the ground that Erin, as the nonbiological spouse, was not a legal parent and lacked standing.

## Issues

1. Whether New York’s marital presumption that a child born during a marriage is the legitimate child of both spouses applies to a same-sex marriage.
2. Whether the nonbiological spouse in a same-sex marriage is a legal parent of a child born to the other spouse during the marriage, giving standing to seek visitation in a divorce action.

## Decision

- The court held that the marital presumption of parentage applies to children born during same-sex marriages.
- The court ruled that Erin is a legal parent of the child born to Wendy during the marriage.
- Because Erin is a legal parent, she has standing to pursue visitation and related parental relief within the divorce proceeding.
- Erin’s requests for visitation, maintenance, and attorney’s fees were permitted to proceed on that parentage determination.

## Legal Principles

- A child born during a marriage is presumed to be the legitimate child of both spouses under New York’s common-law presumption and legitimacy statutes, including Domestic Relations Law § 24 and Family Court Act § 417.
- The Marriage Equality Act requires that statutes and the common law governing marital benefits and obligations be construed in a gender-neutral manner.
- Under that gender-neutral construction, marital parentage presumptions that attach to a spouse in an opposite-sex marriage apply equally to a spouse in a same-sex marriage.
- In assessing marital parentage in this setting, evidence consistent with marital intent and recognition—such as joint decisions to conceive and a birth certificate listing both spouses—supports application of the marital presumption.
- Pre-Marriage Equality Act cases denying standing to nonbiological, nonadoptive partners in unmarried relationships do not control where the parties were married and the gender-neutral mandate applies.

## Conclusion

The court determined that New York’s marital presumption of parentage extends to same-sex spouses, making the nonbiological spouse a legal parent of a child born during the marriage and permitting that spouse to seek visitation and related relief in the divorce action.


Wendy G-M. v. Erin G-M., 45 Misc. 3d 574, 985 N.Y.S.2d 845 (Sup. Ct. Monroe Cnty. 2014)