I have written about this before, and it is still true – same sex couples still need second parent adoptions even though they are legally married. New York’s Appellate Division Second Department made this clear their May 2015 decision, Matter of Paczkowski.
The case is about a lesbian couple who was married and had a child together during the marriage. The non-biological mom had not adopted their child. The couple later broke up, and she filed for joint custody, arguing that she should be presumed to be the parent since she was married to the biological mother.
There is a presumption of parentage in New York case law that says that if a child is born to a mother who is married, it is presumed that the mother’s spouse is the parent. However, this legal doctrine (which used to be called a presumption of legitimacy) is based upon the notion of a heterosexual marriage, where the father’s parentage is a biological possibility.
Here the courts said that the non-biological mom had no standing to pursue her custody petition, since “there is no possibility that she is the child’s biological parent.”