What is the remedy available to prove legitimacy of my child under New York law?

Full question:

My child was born nine months after my ceremonial marriage but before his death in an accident. Now my deceased husband’s mother alleges that he was not the father of the child because our marriage was void. What is the remedy available to prove legitimacy of my child under New York law?

• Category: Paternity
• Date: 04/07/2025
• State: New York

Answer:

In New York, when a child is born to parents who were married prior or subsequent to the child’s birth, then that child is considered as the legitimate child of both parents albeit that the marriage is void or voidable. This is provided under NY CLS Dom Rel § 24, reads:
 

1. A child heretofore or hereafter born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid, in the manner authorized by the law of the place where such marriage takes place, is the legitimate child of both birth parents notwithstanding that such marriage is void or voidable or has been or shall hereafter be annulled or judicially declared void.
 
2. Nothing herein contained shall be deemed to affect the construction of any will or other instrument executed before the time this act shall take effect or any right or interest in property or right of action vested or accrued before the time this act shall take effect, or to limit the operation of any judicial determination heretofore made containing express provision with respect to the legitimacy, maintenance or custody of any child, or to affect any adoption proceeding heretofore commenced, or limit the effect of any order or orders entered in such adoption proceeding.

 
In the present case, a child born nine months after the marriage shall be legitimate child of both parents even though that the marriage is void or voidable.