New York: Gay Spouse Has Standing to Seek Custody and Visitation of Children Born Into a Gay Marriage

Lesbian Couple in California, Mom and Mama, have three Children together by means of artificial insemination by Donor, a friend.

The Couple were in a domestic partnership at the time of the birth of their first two children, and later married.

Mama delivered the last two of the Children and Mom delivered the first.

The Couple and the Children moved from California to New York the year after the last child’s birth.

Couple broke up and Mom moved out of state.

Mom filed for custody and visitation in New York.

In an effort to “change the game”, Mama filed a paternity case against Donor and a divorce from Mom.

The Children’s attorney argued in favor of Mom’s standing and her visitation.

The New York Family Court dismissed Mama’s petitions against Donor, rejected Mama’s position that Mom has no parental rights and recognized that Mom had legal standing to seek custody and visitation of Children based on California law.

Specifically, under California statute, if a child is born during a marriage, the spouse of the mother is presumed to be the other legal parent of the child. New York common law agrees.

The New York Family Court judge also ruled that Donor was not the legal parent of Children.

Mama asserts that she will appeal.

Read more in this New York Law Journal article: Judge Follows California Law in Partner’s Visitation Bid .