In an earlier posting, I discussed a legal concept known as “equitable estoppel”. This is principal which allows a court to declare that a man is the legal father, even though is not the biological father.
Recently, Judge Richard Lawrence, Family Court, Nassau County was presented with such an issue. The case, Matter of KJP v. VB was reported in the September 24, 2007 issue of the New York Law Journal.
The mother brought an action for paternity. She further asked that there no be any genetic testing, but instead that the respondent be declared the father by equitable estoppel. She asserted that the respondent is the father, and the child has always known him to be his father. Although there is no father’s name on the birth certificate, the mother explained that she had stopped seeing the father prior to the birth, due to his violence against her. She claimed that the respondent knew about the child and that told informed him that he was the father when the child was two years old. The mother claimed that she never identified any other person as the father, and the child always considered the respondent to be his father.
The Respondent opposed the petition and demanded genetic testing. He only admitted to being the father of the child’s sister. He claims that the first time he learned that the mother was claiming that he was the father was when he was served with paternity papers. He claimed that the child calls him by his first name and that he saw the child only when visiting his daughter. The respondent stated that he never held himself out to be the father.
Judge Lawrence noted that the mother, seeking to enforce the doctrine of equitable estoppel has the burden of proof before the court. The moving party, in this case the mother, must set forth what is called a “prima facie” case. A prima facie showing is more than a mere allegation. In this instance, the law requires that the mother show that the child considers the respondent to be his father, and that the child could face some harm if the motion is denied.
Judge Lawrence noted that a hearing should be held to determine the credibility of the witnesses. Further, “the evidence should be construed from the child’s perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing includes the child’s interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect of testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered. Importantly, the paramount concern in an equitable estoppel case is the best interests of the children.”
Faced with such conflicting stories from the parties, Judge Lawrence ordered that a hearing be held to decide whether or not to order genetic testing. “Ultimately, a court shall not order genetic testing in a paternity matter without first issuing a written finding that it is not in the best interests of the child on the basis of equitable estoppel.”
This case merely restates the position that a biological stranger could be found to be the legal father, if it is in the bests interests of the child. As more children are born out of wedlock, and couples co-habitat without being married, the doctrine of equitable estoppel will be applied with greater frequency.