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

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.