Equitable paternity stands firm, N.Y. high court says.

The New York Court of Appeals recently reinforced the doctrine of equitable paternity, ruling 5-2 that a man who acted as a father to a girl he assumed was his daughter was estopped from denying paternity even after DNA tests proved that he was not her biological parent. (Shondel J. v. Mark D., 2006WL 1835214 (N.Y. July 6, 2006).)

Mark D. met and had a relationship with Shondel J. in 1995 while visiting family in Guyana. After he returned to New York, Shondel told him that she was pregnant with his child, and he assumed certain responsibilities--providing some financial support during and after the pregnancy, visiting the child, making her a beneficiary of his life insurance policy, and signing a letter declaring himself her father to procure her immigration credentials.

Mark and Shondel's relationship went awry in 1998, and he married another woman a year later. After Shondel moved to New York in 2000, she filed a paternity petition for child support, and Mark filed separately for visitation rights. When court-ordered DNA tests found that he was not the girl's biological father, Mark abandoned his petition and attempted to sever all ties with the child.

A family court judge held that Mark was equitably estopped from denying paternity under [subsection] 418 (a) and 532 (a) of New York's Family Court Act. In proceedings leading up to the estoppel trial, a court-appointed law guardian had concluded that Mark had acted as the father of the child and that she considered him her father.

The New York high court affirmed the lower courts' findings, saying that although paternity by estoppel had common law origins, it is now secured by statute in New York.

"In allowing a court to declare paternity irrespective of biological fatherhood, the legislature made a deliberate policy choice that speaks directly to the case before us," Judge Albert Rosenblatt wrote for the majority. "Cutting off [established parental] support, whether emotional or financial, may leave the child in a worse position than if that support had never been given."

The court also said that fraud and misrepresentation, often used as defenses to the doctrine of equitable estoppel, did not apply. "The legislature did not create an exception for men who take on the role of fatherhood based on the mother's misrepresentation," Rosenblatt wrote. "Under the enactment, the mother's motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served."

Yet, as dissenting Judge George Bundy Smith noted, the "best interests of the child" standard is not clear-cut. Smith wrote that the child's best interests "require more than financial support." He also argued that Mark could not be estopped from denying paternity because he had not engaged in false conduct--an element of estoppel.

"This is not a case where a child lived for years with, and was brought up by, a man she had always thought was her father," Smith wrote, describing Mark as "a man who, in addition to having no biological tie, has no interest in continuing a relationship with [the child] or her mother."

Attorney Ann Detiere of New York, who represented Mark, said the ruling was "contrary to the best interests of the child" and would encourage paternal alienation.

Alan Burstein, a New York attorney who handles equitable paternity cases, disagreed, saying the decision "confirms the legislation's intent" and "affirms the courts' concern for the best interests of the child in situations where estoppel is found."

The New York high court threw out Mark's argument that [sub section] 418(a) and 532 (a) of the Family Court Act deprive him of due process, because he failed to raise it in the lower courts. Detiere noted that Shondel had never invoked the statute and the lower courts had raised it sua sponte.

"Equitable paternity is an antiquated and standardless concept that will make men afraid of doing things for children that may be interpreted as [fatherlike]," Detiere said. She plans to appeal to the U.S. Supreme Court.

The New York court acknowledged the difficulty of Mark's situation, noting that a man with doubts about his biological paternity has two options: put the doubts aside and initiate a relationship with the child as the father, or demand a DNA test of paternity before starting the relationship.

"A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman," the court said. "It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable."