Under New York State law, a child born during a marriage is presumed to be the child of both parents. Recently, however, a Suffolk Supreme Court judge ruled in a case of same sex marriage that the non-biological parent of a two-year old child lacked standing to seek custody or visitation of the child that her lawful spouse had conceived during artificial insemination. Despite the fact that the couple had been legally married in Connecticut, the Judge ruled this way because the parties had been legally married before New York State passed the Marriage Equality Act, to be recognized as a legal parent in New York.
The attorney for the non-biological parent called the ruling "absolutely unprecedented." Even before New York passed the Marriage Equality Act, New York State recognized same-sex marriages performed in other States. However, in the Court's ruling, it ignored legal precedent and denied the non-biological parent her lawful rights as a parent.
Unfortunately, by treating same-sex parents differently under the law from different sex parents, this decision represents a setback for the LGBT community. The non-biological parent intends to appeal this decision. We hope that the Appellate Division will reverse this decision, once again reaffirming that the biology of the child is irrelevant when same sex parents are involved, and that only the best interests of the child are paramount in same-sex custody cases.