Same Sex Marriage Does Not Prevent Father’s Paternity Lawsuit

Paternity rights for Long IslandersIn an unusual case in Monroe County Family Court, Judge Joan Kohout was presented with what may be referred to as a modern dilemma. A mother and her same sex wife, had a child born to them during the course of their marriage. Since the child was born during the course of the marriage, they claimed they were the legitimate two parents of this child. They argued in Family Court a man could not bring a paternity lawsuit claiming he was the father of the child. They argued the child had developed an attachment to the mother’s wife and therefore the father should be equitably estopped (barred) from being allowed to prove paternity of the child.

Judge Kohout pointed out the wife had not taken action to adopt the child. She also noted in her decision the mother and the wife were currently involved in a divorce lawsuit.

No Artificial Insemination

Judge Kohout in rendering her decision stated the mother had not been artificially inseminated. She had become pregnant as a result of having sexual relations with the man who sought to prove paternity. The sexual relations took place while she was married to her wife. The mother acknowledged the man seeking to prove paternity was actually the biological father of the child. Judge Kohout found based on these facts, even though the mother and wife were married at the time of the birth of the child, the father should not be precluded from proving he was the actual, biological father. The court took into consideration only 8 months had gone by since the child was born and the father filed his petition. The judge also stated in her decision there was no evidence the father had acquiesced or promoted the wife’s assuming the role of the parent of the child.

Judge Kohout concluded there was neither a presumption of legitimacy nor an equitable estoppel barring the father from bringing the paternity action. The court ordered that genetic marker testing be undertaken to determine if the father was indeed the biological father.


There is a doctrine called equitable estoppel with regard to heterosexual relationships. Under this doctrine, if a man acts as if he is the father of a child for a period of time, and thereafter changes his mind and seeks to have paternity testing to determine whether he actually is the biological father of the child, he should be barred from being able to show he is not the actual father of the child. Equitable estoppel is based under the idea it is in the child’s best interest not to change who the child perceives as his father. This is not necessarily a legal theory the writer subscribes to.Father's Rights attorney on Long Island

About Elliot S. Schlissel

Elliot S. Schlissel, Esq. has spent more that 45 years representing individuals in matrimonial and family law cases.