Can A Granddaughter Marry Her Uncle?

October 30, 2014

As with virtually every job, the practice of law often becomes mind-numbingly boring. Every so often, however, the profession presents you with a fascinating puzzle. A recent federal case may strike some as a religious question raising basic issues of moral right and wrong -- a question of "sin," if you will. For others, these same set of facts do not present any issue of morality but a complex and complicated question of law and its interpretation. Consider the New York State Domestic Relations Law:

Section 5: A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:
1. An ancestor and a descendant;
2. A brother and sister of either the whole or the half blood;
3. An uncle and niece or an aunt or nephew.
If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner.

Keeping in mind the incest proscriptions of Section 5, factor in the following:

A Conditional Permanent Resident

Huyen Nguyen, a citizen of Vietnam,  was granted conditional permanent resident status in the United States of America in 2000.  In January of 2000, in Rochester, NY, Nguyen, then 19, married naturalized American citizen Vu Trong, 24.

The Wife's Grandmother Was Her Husband's Mother

Funny thing about husband Trong and wife Nguyen. In 1950, Nguyen's grandmother Nguyen Thi Ba, gave birth to Nguyen's mother. In 1975, grandmother Ba gave birth to Nguyen's husband Trong but by a different father than that of Nguyen's mother.

Yeah, go ahead, ponder that!

As a result of Ba's parenting, Nguyen's mother was Trong's half-sister, and Nguyen winds up as her husband's half-niece and he her half-uncle.

Under NY Domestic Relations Law Section, Section 5(2) says "half" brothers and sisters can't marry and under 5(3) uncles and nieces can't marry. So . . . what about a marriage between a half-niece and her half-uncle?

Immigration Steps In

Remember that part where Nguyen became a conditional legal resident of the US by marriage? On July 10, 2002, Nguyen and her husband filed a joint petition to remove the conditions but on December 12, 2007, the United States Customs and Immigration Service denied the petition after finding that Nguyen was Truong's half‐niece. That familial relationship apparently was deemed incestuous and voided the marriage; and, accordingly, an immigration judge ordered Nguyen's removed from the country. On appeal, the Board of Immigration Appeals affirmed the removal order.

How Do You See It?

Nguyen petitioned the United States Court of Appeals for the Second Circuit, which submitted the following question of for certification to the New York State Court of Appeals:

"Does section 5 (3) of New York's Domestic Relations Law void as incestuous a marriage between an uncle and niece 'of the half blood' (that is, where the husband is the half-brother of the wife's mother)?"

In finding that the marriage between a half-uncle and half-niece was not void as incestuous under section 5(3), the NY Court of Appeals offered the following rationale in a concurring opinion:

I also conclude that the apparent purpose of section 5 (3) supports a reading that excludes half-uncle/half-niece marriages from its scope. Section 5 as a whole may be thought of as serving two purposes: it reflects long-held and deeply-rooted values, and it is also concerned with preventing genetic diseases and defects. Sections 5 (1) and 5 (2), prohibiting primarily parent-child and brother-sister marriages, are grounded in the almost universal horror with which such marriages are viewed - a horror perhaps attributable to the destructive effect on normal family life that would follow if people viewed their parents, children, brothers and sisters as potential sexual partners. As the Appellate Division explained in Matter of May (280 App Div 647, 649 [3d Dept 1952], aff'd 305 NY 486 [1953]), these relationships are "so incestuous in degree as to have been regarded with abhorrence since time immemorial."

Pages 5-6 of the Opinion

The Opinion further explains:

The second purpose of section 5's prohibition of incest is to prevent the increased risk of genetic disorders generally believed to result from "inbreeding." (It may be no coincidence that the broadening of the incest statute in 1893 was roughly contemporaneous with the development of the modern science of genetics in the late 19th century.) We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral argument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins. First cousins are allowed to marry in New York, and I conclude that it was not the Legislature's purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one.

Pages 6-7 of the Opinion

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