Who's The Daddy?: The Doctrine of Equitable Estoppel

Whether or not a man is determined to be the legal father of a child has enormous implications which range from the emotional to the financial.  A recent decision by the New York Court of Appeals (Matter of Juanita A. v. Kenneth Mark N.) highlights some of the problems with this still evolving area of the law.  For a full discussion of the facts of the case click here.  As the attorney who was assigned to represent the mother the last time the Court of Appeals took up this case, I have had considerable experience confronting this highly complicated issue. The decision in its entirety can be seen here.

In a nutshell, the problem is a doctrine called "equitable estoppel".  This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father.  As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is).  This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity.  However, timing, in this instance, is absolutely critical.

If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim.  The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child.  If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child. 

The rule has its benefits but with significant drawbacks.  The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured.  However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud?  Is this fair to the father?  The child?  These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced.  The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud.  Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.

From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible.  By that I emphatically do not mean once litigation has already started.  I mean as soon as possible after the child is born.