New York Divorce Lawyers Explain Family and Matrimonial Law

Equitable Estoppel And Paternity

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.

Paternity by Estoppel

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.