Equitable Estoppel - Who's The Daddy?

Ask anyone who practices in Family Court on a regular basis and they will tell you that the overriding concern in just about any proceeding is the best interests of the child.  The basis of this, of course, is that children are the most vulnerable members of the family, in need of the most support, both financial and otherwise, to realize their full potential.  However, when it comes to paternity proceedings, there are times when protecting the child's "best interests" can fly in the face of both fairness and common sense. 

The doctrine of equitable estoppel provides such an example.  The doctrine of equitable estoppel is invoked, usually by mothers (but not always) when a father seeks to have a DNA test to confirm that they are in fact, the father.  Often these challenges to paternity come when the parents have separated and now the mother is seeking support.  The father often wants to make sure that the child for whom he is going to be financially obligated to until the child turns 21 years old, is, in fact, his.  To be sure, there are many times when these challenges are totally frivolous and made simply to exact some form of petty revenge against the mother.  However, there are plenty of times when the concerns are sincere. 

This is an issue that even the highest court in New York, The Court of Appeals, continues to grapple with.  In a case in which I represented the mother before the Court of Appeals, a man who was not the biological father was nonetheless held to be the legal father because he had held himself out as the child's father for a period of 7 years.  The case was Shondel J. v. Mark D.. The decision in its entirety can be seen here.  More recent cases dealing with this issue and a further discussion of this issue can be seen in the recent New York Children's Lawyer by clicking here.

The issue in Shondel J. was similar to many cases I hd handled before and since.  A father comes into court and asks for a DNA test.  Before the Family Court agrees to give him that test the court must first determine if the father should be estopped from challenging paternity.  What made Shondel J. unique was that the court did not do that, gave the father and child the DNA test and it was determined that he was not the father of the 7 year old girl who was the subject of the proceeding.  The mother and child were then assigned attorneys (which should have happened inthe very onset of the case) and they challenged the father's right to a DNA test.  The mother ultimately prevailed. 

The fundamental goal of the decision in the Court of Appeals in Shondel J. was too preserve the child's right to a father.  Clearly, the child had a right to expect the love and support of Mark D. (who in actuality severed his relationship with his "daughter" when he found out she was not his).  But what the dissenting judges in that case could not accept was the palpable unfairness of imposing a false relationship on the father, rewarding the mother for essentially committing a fraud upon the father and