Paternity by Estoppel

by / 0 Comments / 331 View / September 23, 2007

Under New York Family law, it is possible for a non-biological father to be declared the parent. This is called equitable estoppel. The purpose of this rule to is protect a child who has been raised to believe that a certain person is his father.

The rationale is that a child would be traumatized to discover that the person he considered his father is in fact not. In order to protect the child, the court can declare a person to be a father when his is not the biological father.

The factors that the court considers in deciding this issue are: (1) the child’s knowledge of the identity of the biological father; (2) whether the biological father’s identity is likely to be discovered; (3) whether the DNA testing  would have a traumatic affect upon the child; and (4) whether uncertainty as to paternity would impact the parent-child relationship.

As a practical example, let me describe a case which occurred a few years ago. Mr. X had married Mrs. X. During the course of the marriage, a child was born, Y. Unbeknownst to Mr. X and Y, the biological father was Mr. Z. Mr. Z was a social friend of the couple. Eventually, Mr. X found out about Mr. Z’s role, but continued to treat the child as his own.  After the child turned 10, Mr. Z decided to petition to court for paternity. Mr. and Mrs. X opposed the petition, claiming that such an order would devastate the child. The court agreed. It found that as the child has been raised to believe that Mr. X was his father, it would not be in the child’s best interests to learn otherwise.

This rule has a great impact in support cases. Typically, Ms. A seeks child support from Mr. B. He objects and demands a paternity test. If the child has been raised to believe that Mr. B. is his father, then the court could decline to order a test, and instead find parenthood by estoppel.

This is similar to what was reported in a recent Nassau County Family Court case.

In the matter of Davis v. White, reported in the September 14, 2007 New York Law Journal, Nassau Family Court Judge Conrad Singer, found to fatherhood by estoppels doctrine to deny a request for a paternity test. The Nassau county department of social services, on behalf of the mother, brought an action for paternity against Mr. White. Both the child’s law guardian and Mr. White asked for the court to conclude that the mother’s live-in boyfriend, with whom she has a child, is the father by estoppel.

The law guardian claimed that the child considers the boyfriend, Jesse, to be his father. The law guardian asserted that the child calls Jesse daddy and that they have lived together for the past year.

The judge denied the application and ordered the paternity testing of Mr. White. The court stated that the assertions of the law guardian alone did not establish that there was a parent-child relationship between Jesse and the child. The judge further stated that the Court’s overriding concern when determining whether to invoke equitable estoppels is the best interest of the child.”

The point that troubled the judge, and in my opinion led to his decision, was that if he allowed Mr. White to walk away from his responsibilities, the child could suffer financial harm. The judge envisioned a situation where Jesse would leave the mother and the child would be without a means of support.

But, if the court granted Mr. White’s motion to declare that under the doctrine of equitable estoppel he was not the parent, doesn’t it follow that Jesse would be declared the father? No. Only Mr. White was before the court. If the court rendered a ruling in his favor, it would not affect Jesse, who was not a party to the action. Thus, of Judge Singer found Mr. White was not the parent, he would not, at least in the petition before, be able to find Jesse to be the parent.  Such a decision would leave the child would anyone the court could order child support from.

Now, if Jesse was also before the court, then perhaps the Judge would have arrived at a different decision.

Therefore, in order to ensure that the child did not become a public charge, the Judge decided that it was in the best interests of the child not to grant Mr. White’s motion.

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