Who's Your Daddy?: The Marital Presumption of Legitimacy in the Modern World and its Application to Same‐Sex Couples

• Published date: 01 April 2017
• DOI: http://doi.org/10.1111/fcre.12279
• Date: 01 April 2017
• Author: Angela Ruffini

WHO’S YOUR DADDY?: THE MARITAL PRESUMPTION OF

LEGITIMACY IN THE MODERN WORLD AND ITS APPLICATION TO

SAME-SEX COUPLES

Angela Ruffini*

Recently, the definition of marriage has been significantly altered. No longer do we find ourselves exclusively in the midst of

“traditional marriage” between one man and one woman. Instead, everywhere we experience different kinds of marriages and

diverse, nontraditional families. The United States has finally caught up to many advanced democracies in universally recog-

nizing same-sex marriage through the Supreme Court’s decision in Obergefell v. Hodges. However, the next question remains

unanswered: what about families of same-sex couples? This Note explores the nature of same-sex couples, their families, and

in particular, their children. It addresses the issue of the marital presumption of legitimacy and encourages its application to all

legally recognized married couples regardless of sexual orientation and biology. Even though prior to Obergefell some states

were unwilling to apply the presumption, since the implementation of marriage equality, the next logical step would be to uti-

lize the presumption to ensure that all parents, regardless of gender, are recognized and families are preserved.

Key Points for the Family Court Community:

The marital presumption of legitimacy is a common law concept in which the husband of a woman who bears a child

during the marriage is presumed to be the father of the child regardless of biology.

The modern approach to the marital presumption has applied equally to heterosexual and homosexual couples in many

cases. However, when it comes to same-sex couples, in order to be recognized as an actual parent to a nonbiological

child, it is helpful to assert that the nonbiological parent helps provide financial support and assistance in child rearing

and has established a long-term relationship with the child.

The decision in Obergefell has ensured that the constitutional right to marry is now applicable to same-sex couples.

After Obergefell, while certain states and jurisdictions allow for the recognition and protection of a nonbiological par-

ent—or a nonrecognized parent—of a married homosexual couple, many states and jurisdictions still do not afford

those protections, and thus it is important to implement a uniform statute for states to adopt to ensure the rights of the

nonbiological parent.

Keywords: Biological Parent; Equal Protection; Functional Parent; Intentional Parent; Marital Presumption of

Legitimacy; Parentage Presumption; Same-Sex Couples; and Uniform Parentage Act.

I. INTRODUCTION

[Another] basis for protecting the right to marry is that it safeguards children and families and thus draws

meaning from related rights of childrearing, procreation, and education. The Court has recognized these

connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home

and bring up children’ is a central part of the liberty protected by the Due Process Clause.”... Marriage

also affords the permanency and stability important to children’s best interests.

–Supreme Court Justice Anthony Kennedy

1

In his majority opinion in Obergefell v. Hodges, Justice Kennedy eloquently defended why mar-

riage equality is a necessity in the United States. His comments vividly articulate the strong connec-

tion between marriage and child rearing. He further infers that the children of same-sex couples bear

the highest burden when raised by unmarried parents. That difficulty still persists even though mar-

riage equality has been mandated throughout the United States. Despite the majority’s holding in

Correspondence: AngelaRuff15@gmail.com

FAMILY COURT REVIEW, Vol. 55 No. 2, April 2017 307–320

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C2017 Association of Family and Conciliation Courts