In Laura WW. v. Peter WW. (51 AD3d 211, 213, 856 NYS2d 258 [3d Dept 2008]), the wife conceived the parties' third child via artificial insemination.
A few months into her pregnancy, the parties executed a separation agreement, which provided that the husband would not be financially responsible for the third child.
Despite their agreement, the wife alleged in her complaint for divorce that the child was the issue of the marriage.
The parties executed a stipulation that reiterated the terms previously agreed to in the first agreement, whereby the husband's child support calculation was based upon two rather than three children. The Supreme Court, having found that the provision was void as against public policy, appointed a Law Guardian for the third child and held a hearing on the issue of paternity.
Following the hearing, the Supreme Court found that the husband was the child's legal father and it modified the parties' separation agreement to the extent of increasing the husband's child support obligation to include all of the children.
On appeal, the husband invoked noncompliance with the statutory prerequisites of Domestic Relations Law§ 73 as a bar to a finding that he was the legal father.
The Third Department gave no credence to that argument. Recognizing its obligation to protect the best interest of the child, the Court explained that failure to comply with Domestic Relations Law § 73 is neither determinative nor conclusive on the issue of whether the husband is the legal father of the child. Applying the common-law presumption of legitimacy in tandem with New York's strong policy in favor of legitimacy, the Court found that the husband failed to establish that he took any steps before artificial insemination was performed to demonstrate that he was not willing to be the child's father.