Khan & Yau, PC Reliable & Responsive New York City Attorneys

Woman appeals ruling that considers former same-sex spouse father

In 2015, the U.S. Supreme Court ruled that gay marriage was afforded the same protection under the laws as is heterosexual marriage. With that ruling, there has been a host of other issues relating to same-sex marriage that have cropped up in state courts across the country, including here in New York. Now, a woman is petitioning the Supreme Court to wade in on another case concerning paternity rights.

Recently, a supreme court in another state granted a former same-sex spouse paternity rights to a child born through artificial insemination. The couple wed and agreed to have a child through a sperm donor. When the infant was born, the couple took legal steps to ensure that the non-biological parent had equal parenting rights to their son. However, when the couple later split, the mother attempted to deny her former spouse custody rights.

The case went all the way to the Arizona Supreme Court, which ruled that the other woman was to be considered the father of the child. Now, the mother is seeking to have that ruling overturned on the basis that the marriage ruling in 2015 did not have the power to change the paternity laws. The new filing is based on the presumption that the courts cannot rewrite laws, and any effective change concerning paternity laws must come from legislative efforts.

When the U.S. Supreme Court issues a ruling on this case, it may have broad reaching ramifications on all future cases of this type, including whether federal laws will supersede states' rights. There is currently only a few states that have laws that specifically address the matter of artificial insemination, and New York is one of them that considers a woman's husband the biological father of a child born through this means. Families who reside here and are struggling with issues relating to same-sex marriage may benefit from consulting with a family law attorney who is experienced in this aspect of family law.

Source: kjzz.com, "Same-Sex Custody Battle Could Have Broad Implications For Insemination Laws", Claire Caulfield and Howie Fischer, Jan. 16, 2018

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