In a decision gay-rights lawyers are calling a landmark, a state appeals court has recognized for the first time that New York State’s family law “presumption of legitimacy”—which says that a child born during marriage is presumed to be a biological product of that marriage—applies to a child born to a same-sex married couple.

An Appellate Division, First Department, panel ruled that Han Ming T., the former married partner of Marco D., a gay man now living in New York, was due notice of Marco D.’s petition to have their child adopted by his new homosexual partner.

The panel’s unanimous opinion affirmed the March 2016 decision from Manhattan Supreme Court Justice Stewart Weinstein. Weinstein had vacated the adoption of the “subject child,” in part because Ming T. was entitled to notice of the New York adoption proceedings and, in conjunction with that, should have been heard in the proceedings before any adoption be granted.

“The child was  born in 2014,  as the result of jointly executed surrogacy agreements, at a time when the couple was considered legally married, thus giving rise to the presumption that the child is the legitimate child of both Marco and Ming,” the panel, consisting of Justice Peter Tom, Angela Mazzarelli, Richard Andrias, Oing and Anil Singh, wrote in their Sept. 28 unsigned opinion.

“The child was born in wedlock, and Ming was entitled to notice of the adoption proceeding,” they added.

Lawyers for Ming T. say that the panel’s ruling helps break new legal ground and represents the logical following to the Court of Appeals decision in August 2016 in Matter of Brooke S.B. v. Elizabeth A. C.C., 91.

That landmark decision expanded the definition of “parenthood” in New York, particularly for same-sex couples. There the high court ruled that the  nonmarried, ex-homosexual partner of a biological parent  could seek custody or visitation rights of children they once agreed to conceive and raise as co-partners with their exes.

In the case before the panel, Carlos A. v. Han Ming T., 4526A, the panel referenced Brooke v. Elizabeth, and wrote, “Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1 [2016]), Ming’s claim to have standing as a parent is even stronger.”

Ming T. was represented by Nina E. Rumbold, of Rumbold & Seidelman, LLP.

Marco D. and his new partner, Carlos A., were represented by Frederick J. Magovern, of Magovern & Sclafani.