Matter of Shondel
J. v Mark D.
7 N.Y.3d 320, 820 N.Y.S.2d
199, 853 N.E.2d 610 (2006)
ROSENBLATT, J.:
In this child support
proceeding, we hold that a man who has mistakenly represented himself as a child's
father may be estopped from denying paternity, and made to pay child support,
when the child justifiably relied on the man's representation of paternity, to
the [*2]child's detriment. We reach this conclusion based on the best interests
of the child as set forth by the Legislature.
I.
In January 1996, Shondel J.
gave birth to a daughter in
Although Mark was in
In August 2000, Shondel
commenced a Family Court article 5 proceeding alleging that Mark is the father
and seeking orders of filiation and support. Initially, Mark did not contest
paternity. On the contrary, in September 2000, when the child was four and a
half years old, Mark commenced a Family Court article 6 proceeding, seeking
visitation. In his petition, he stated that he was the child's father, and that he loved her and wished to "spend
quality time with her on a regularly scheduled basis."
In October 2000, however,
when appearing before a Family Court hearing examiner to answer Shondel's
petition, Mark requested DNA testing. The hearing examiner ordered genetic
marker tests, which revealed that Mark in fact is not the child's biological father.
The hearing examiner then dismissed Shondel's paternity petition, and Mark
abandoned his petition for visitation, having severed his relationship with the
child. Shondel objected to the hearing examiner's order, expressing doubts
about the laboratory tests and stating that she would be able to show that Mark
had always recognized the child as his. Realizing that the hearing examiner had
exceeded her authority in dismissing Shondel's petition, Family Court sustained
her objection and appointed a law guardian for the child.
In October 2001, the Law
Guardian reported that Mark had acted as the father of the child, who in turn
considered him her father. Family Court set the matter down for a trial on
equitable estoppel and ordered another set of tests. A blood genetic marker
test confirmed that Mark is not the child's biological father. [*3]
At the estoppel trial, Family
Court heard widely diverging testimony from Shondel and Mark. According to
Shondel's testimony, Mark spent time with her and the child when they traveled
to the United States in 1996 and 1997, seeing them "every day" for
about six weeks in the summer of 1997 in New York; continued to visit the child
and take her out after his relationship with Shondel soured in 1998; bought the
child toys, clothes and other gifts; took the child to meet his parents; told
his family that she was his daughter; regularly spoke with the child by
telephone; referred to himself as "daddy" when talking with the
child; and visited the child "almost every other day" in August 1999
and "almost every other day" between the time Shondel and the child
moved to New York in January 2000 and the commencement of this litigation.
Mark denied all of this,
asserting that he had seen the child only four times since her birth; that he
had not acknowledged the child as his; that he had not introduced the child to
his family or friends as his child; that he had not sent the child birthday or
Christmas gifts; and that he had never visited her. Mark testified that he
twice asked Shondel to submit to a blood test to determine whether he was the
father of her child. Shondel insisted that he did not.
Family Court believed Shondel
"entirely" and found Mark's testimony incredible. It ruled that Mark
"held himself out as [the] child's father, and behaved in every way as if
he was the father, albeit a father who didn't reside for a good part of the
child's life, in the same country." These affirmed findings of Family
Court have support in the record and are binding on this Court.
Family Court entered an order
of filiation and awarded child support retroactive to the date Shondel
commenced the Family Court proceeding. The Appellate Division affirmed,
concluding that "Family Court properly determined that it was in the best
interests of the subject child to equitably estop [Mark] from denying
paternity" (6 AD3d 437)[FN1]. We agree, based on
our precedents, the affirmed findings of fact and the legislative recognition
of paternity by estoppel.
II.
The purpose of equitable
estoppel is to preclude a person from asserting a right when he or she has led
another to form the reasonable belief that the right would not be asserted, and
loss or prejudice to the other would result if the right were asserted. The law
imposes the doctrine as a matter of fairness. Its purpose is to prevent someone
from enforcing rights that would work injustice on the person against whom
enforcement is sought and who, while justifiably relying on the opposing
party's actions, has been misled into a detrimental change of [*4]position (see
generally Nassau Trust Co. v Montrose Concrete Products Corp., 56 NY2d 175, 184
[1982]).
Although it originated in
case law, paternity by estoppel is now secured by statute in
Equitable estoppel is gender
neutral. In Matter of Sharon GG. v
Duane HH. (63 NY2d 859 [1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an
order of the Appellate Division dismissing a paternity petition in which a
mother sought to compel her husband to submit to a blood test as a means of
challenging his paternity. We agreed with the Appellate Division that the
mother should be estopped. As that court pointed out, the mother expressed no
question about her child's paternity until some two and a half years after the
child's birth. She had held the child out as her husband's, accepted his
support for the child while she and her husband lived together and after they
separated, and permitted her husband and child to form strong ties together.
Estoppel may also preclude a
man who claims to be a child's biological father from asserting his paternity
when he acquiesced in the establishment of a strong parent-child bond between
the child and another man. The rationale is that the child would be harmed by a
determination that someone else is the biological father. For example, in
Purificati v Paricos (154 AD2d 360 [2d Dept 1989]), a boy's biological father
who did not seek to establish his paternity until more than three years after
the child's birth, and who acquiesced as a relationship flourished between the
boy and his mother's former husband, was estopped from claiming paternity. The
courts "impose equitable estoppel to protect the status interests of a
child in an already recognized and operative parent-child relationship"
(In re Baby Boy C., 84 NY2d 91, 102 n [1994]).
Finally, the Appellate
Division has repeatedly concluded that a man who has held himself out to be the
father of a child, so that a parent-child relationship developed between the
[*5]two, may be estopped from denying paternity [FN2].
Where a child justifiably relies on the representations of a man that he is her
father with the result that she will be harmed by the man's denial of
paternity, the man may be estopped from asserting that denial.[FN3]
III.
Mark represented that he was
the father of the child, and she justifiably relied on this representation,
changing her position by forming a bond with him, to her ultimate detriment. He
is therefore estopped from denying paternity.
Mark expressly represented
that he was the father of Shondel's child in the notarized sworn statement and
in the
The record also establishes
that the child justifiably relied on Mark's representations, accepting him as
her father and treating him as such. The Law Guardian's October 2001 oral
report to Family Court on her interview with the child (conducted when she was
five and a half years old) concluded that she "considers Mark [D.] to be her father. She enjoys spending time with him, she
knew his name, she described what he looks like, different things about his
appearance, she talked about some of the things they did together, she enjoyed
the visits a lot, he brought her presents in the past, he took her out without
the mother sometimes, [*6]there's a picture album with pictures of [Mark] in it
and she wanted me to express that she misses him and she wants to know when he's
going to come back to see her."
In the best interests of the
child, Family Court properly applied estoppel, to impose support obligations on
Mark, after he left the child with the detrimental effects of a relationship in
which she was misled into believing that he was her father. A mother who had
perfect foresight and knew that her child's relationship with a father figure
would be severed when the child was four and a half might well choose never to
inform him of her child's birth.
IV.
Mark attacks the statutory
basis for the application of paternity by estoppel. In 1990, the Legislature
amended Family Court Act § 418 (a), which governs the
procedures related to scientific testing of biological paternity in support
proceedings, so as to read, in pertinent part:
"The court, on its own
motion or motion of any party, when paternity is contested, shall order the
mother, the child and the alleged father to submit to one or more genetic
marker or DNA marker tests . . . to aid in the determination of whether the
alleged father is or is not the father of the child. No such test shall be
ordered, however, upon a written finding by the court that it is not in the
best interests of the child on the basis of res judicata, equitable estoppel or
the presumption of legitimacy of a child born to a married woman."
(Family
Court Act § 418 [a] [emphasis supplied]; see L 1990, ch 818, § 12.)
Arguing that the statute is
self-contradictory, Mark asserts that the law mandates scientific testing of
biological paternity in support proceedings and then in the next sentence makes
such tests discretionary. We view the statute differently.
By providing a limited
"best interests of the child" exception to mandatory biological tests
of disputed paternity, the statute requires Family Court to justify its refusal
to order biological tests when paternity is in issue. Before the amendment,
Family Court was authorized, but not required, to order biological tests, and
the court did not have to justify its refusal to do so. Now, in a support
proceeding in which paternity is disputed, Family Court must explain why it
denies a motion for biological paternity testing. The court may deny testing
based on "res judicata, equitable estoppel or the presumption of
legitimacy of a child born to a married woman," if denial is in the best
interests of the child.
It is true that a child in a
support proceeding has an interest in finding out the identity of her
biological father. But in many instances a child also has an interest — no less
powerful — in maintaining her relationship with the man who led her to believe
that he is her [*7]father. The 1990 amendment to Family Court Act § 418 (a)
appropriately balances these interests in accordance with the primary purpose
of the Family Court Act — to protect and promote the best interests of
children.
The procedure contemplated by
§ 418 (a) is that Family Court should consider paternity by estoppel before it
decides whether to test for biological paternity. Here, the process was
inverted early in the proceeding. Instead of referring the matter to a Family
Court judge, the hearing examiner ordered genetic marker tests of paternity
when the parties appeared in October 2000. As a result, the child's biological
paternity had been addressed before Family Court conducted its trial on the
issue of estoppel. Nevertheless, even though the tests had been conducted,
Family Court was authorized to decide the estoppel issue.
V.
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. The
potential damage to a child's psyche caused by suddenly ending established
parental support need only be stated to be
appreciated. Cutting off that support, whether emotional or financial, may
leave the child in a worse position than if that support had never been given.
Situations vary, and the question whether extinguishing the relationship and
its attendant obligations will disserve the child is one for Family Court based
on the facts in each case. Here, Family Court found it to be in the best
interests of the child that Mark be declared her father and the Appellate
Division properly affirmed.
Asserting that the equities
are with Mark, our dissenting colleagues argue that we do not acknowledge the
fraud or misrepresentation exception to the doctrine of equitable estoppel.
This argument is misplaced for three reasons. To begin with, the child is the
party in whose favor estoppel is being applied and there can be no claim here
that she was guilty of fraud or misrepresentation. Secondly, to the extent that
it matters, we note that there is no evidence of fraud or willful
misrepresentation even on Shondel's part. It is not likely that she would have
initiated paternity proceedings, with the predictable prospect of biological
testing, if she expected tests to rule him out as the father. There is every
reason to believe that she thought Mark was the biological father and that the
tests would confirm her belief. Finally, the issue does not involve the
equities between the two adults; the case turns exclusively on the best
interests of the child. We appreciate the dissenters' concern over applying
estoppel to a case in which, as between Mark and Shondel, it was she who
misrepresented Mark to be the father (even though she may have earnestly
believed he was). The dissenters' position, however, appears not to recognize
that fatherhood by estoppel does not contemplate a contest between two adults
to [*8]see who is the more innocent. The child is
entirely innocent and by statute the party whose interests are paramount.
To the child, Mark
represented himself as her father. The Legislature did not create an exception
for men who take on the role of fatherhood based on the mother's
misrepresentation. That would eviscerate the statute and, with it, the child's
best interests. 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.
Here, Family Court found, and
the Appellate Division affirmed, that Mark represented himself to be the father
and that the child's best interests would be served by a declaration of
fatherhood. Under our decisional law, and contrary to the dissenters'
suggestion, equitable estoppel does not require that Mark, to be estopped,
necessarily knew that his representation was false. A party who, like Mark,
does not realize that his representation was factually inaccurate may yet be
estopped from denying that representation when someone else — here the child —
justifiably relied on it to her detriment (see Romano v Metropolitan Life Ins.
Co., 271 NY 288, 293-294 [1936]; Triple Cities Constr. Co. v Maryland Cas.
The dissenters cite Simcuski
v Saeli (44 NY2d 442 [1978]), which holds that a defendant may be estopped to
plead the Statute of Limitations after having wrongfully induced the plaintiff
to refrain from filing a timely suit. Simcuski prevents defendants from
profiting from their misconduct. It does not bear on estoppel as between a man
and the child with whom he has formed a father-daughter relationship.
Our dissenting colleagues
point out that Mark has renounced fatherhood and now has no relationship with
the child. This state of affairs, however, does not preclude the application of
estoppel. If it did, a man could defeat the statute simply by severing all ties
with the child.
Given the statute recognizing
paternity by estoppel, a man who harbors doubts about his biological paternity
of a child has a choice to make. He may either put the doubts aside and
initiate a parental relationship with the child, or insist on a scientific test
of paternity before initiating a parental 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. It is not an easy choice, but at
times, the law intersects with the province of personal relationships and some
strain is inevitable. This should not be allowed to distract the Family Court
from its principal purpose in paternity and support proceedings — to serve the
best interests of the child.
Accordingly, the order of the
Appellate Division should be affirmed, without costs. [*9]
G.B. SMITH, J. (dissenting):
The issue in this case is
whether an individual non-spouse who was falsely told he was the biological
father of a child and who DNA tests show could not be the biological father can
be equitably estopped from denying paternity. A man or woman is and should be
responsible for the financial support of his or her own offspring. In some
instances, this responsibility may be placed upon a non-biological parent. The
facts in this case do not justify such a result. Because the "best interests
of the child" require more than financial support, and equitable estoppel
should be applicable only to someone who engages in false conduct, I dissent.
In 1995, while on a trip to
In 2000, Shondel J. commenced
a Family Court proceeding in
"The essence of the
paternity trial was really one of equitable estoppel, should [Mark D.] be estopped from denying paternity. . . . I do find the
Petitioner to have been entirely credible, and with all due respect, except in
one regard, [Mark D.] entirely incredible. I do believe that he had doubts,
however, he didn't act on them in the appropriate fashion, and as a result he
held himself out as this child's father, and behaved in every way as if he was
the father, albeit a father who didn't reside for a good part of the child's
life, in the same country. However, it's clear to me that these families were
involved with each other, involved with this child, that his parents and
probably other friends and relatives and church members were [*10]aware of this
relationship, were aware of this child . . . . I would assume that for the best
- - and hope that for the best interests of the child, that he could pick up
where he left off, and accept this child wholeheartedly into his life, because
the child certainly wants that, and really, what's paramount here is what the
child needs."
On April 5, 2004, the
Appellate Division, Second Department affirmed the Family Court's order of
filiation. On May 9, 2005, the Second Department dismissed respondent's appeal
from a
Family Court order of retroactive child support, and affirmed an order of
support against him.
The question here is not, as
the majority suggests, whether equitable estoppel "has a rightful place in
According to Family Court Act
§§ 418(a) and 532(a) which are identical in language:
"The court shall advise
the parties of their right to one or more genetic marker tests or DNA tests
and, on the court's own motion or the motion of any party, shall order the
mother, her child and the alleged father to submit to one or more genetic
marker or DNA tests of a type generally acknowledged as reliable by an
accreditation body designated by the secretary of the federal department of
health and human services and performed by a laboratory approved by such an
accreditation body and by the commissioner of health or by a duly qualified
physician to aid in the determination of whether the alleged father is or is
not the father of the child. No such test shall be ordered, however, upon a
written finding by the court that it is not in the best interests of the child
on the basis of res [*11]judicata, equitable estoppel, or the presumption of
legitimacy of a child born to a married woman. The record or report of the
results of any such genetic marker or DNA test ordered pursuant to this section
or pursuant to section one hundred eleven-k of the social services law shall be
received in evidence by the court pursuant to subdivision (e) of rule
forty-five hundred eighteen of the civil practice law and rules where no timely
objection in writing has been made thereto and that if such timely objections
are not made, they shall be deemed waived and shall not be heard by the court.
If the record or report of the results of any such genetic marker or DNA test
or tests indicate at least a ninety-five percent probability of paternity, the
admission of such record or report shall create a rebuttable presumption of
paternity, and shall establish, if unrebutted, the paternity of and liability
for the support of a child pursuant to this article and article four of this
act" (emphasis added).[FN1]
The majority posits that once
Shondel J. claimed Mark D. was the father and made a showing (visits, support,
sworn statements), it was respondent's burden to show equitable estoppel should
not be applied since it would not be in the best interests of the child. The
facts are not sufficient to support equitable estoppel. While Mark D.
financially supported the child and made time to visit her, he has not (in the
language of Black's Law Dictionary) "taken unfair advantage" or been
guilty of "false language or conduct"; he has not (in the language of
our decision in Simcuski) committed any "fraud, misrepresentation or
deception." Thus an essential element of equitable estoppel does not
exist.
The record is clear that
Shondel J. misrepresented the paternity of the child for years and Mark D.
relied on this information in good faith. There is no evidence that Mark D
gained any advantage from holding himself out as the child's father. Thus the
majority's decision applies estoppel against a completely innocent litigant who
gained no benefit from the conduct on which the estoppel is based - a holding
without precedent, in the research undertaken here, in this Court's decisions.
Mark D is being required to support this child through payments of $12,828 in
arrearage (as of October 2003) and $78 per week, in lieu of providing that
support to his own children and his wife.
Moreover, this is a poor case
for abandoning the traditional elements of estoppel. The balance of equities is
in Mark D.'s favor. Contrary to the majority's view (majority at 13), [*12]there is strong evidence of "fraud or wilful
misrepresentation" by Shondel J. She not only told Mark D. that the child
was his, she swore in Family Court that she had sexual relations with no other
man during the relevant time period - testimony proven by DNA tests to be
false. Perhaps more important, 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 (cf.
In re Diana E. v Angel M., 20 AD3d 370 [2005]). At the time of the paternity
proceeding, the child had lived most of her life in a different country from
Mark D., and their relationship was primarily on the telephone. This is a case
in which this Court should remember "the rightful reluctance of courts in a
society valuing freedom of association to impose a personal relationship upon
an unwilling party," a consideration that applies with special force to
"the power of the State to force a parent-child relationship" (Matter
of Baby Boy C.,
84 NY2d 91,
101-102 [1994]).
The majority's ruling allows
disestablishment of paternity if a presumed father acts promptly but does not
allow for an exception for those who have acted in reliance on a
misrepresentation or a fraud. The balance of equities should rarely favor
continuing such misrepresentation or fraud. To hold, as the majority does,
would reward a presumed father who takes no role in a child's life until a DNA
test makes it official or a mother who obtains paternal obligations through
fraud. As the Massachusetts Supreme Court wrote in A.R. v C.R.:
We would proceed with
caution, as other courts have, in imposing a duty of support on a person who
has not adopted a child, is not the child's natural parent, but has undertaken
voluntarily to support the child and to act as a parent. [Citations omitted].
In most instances, such conduct should be encouraged as a matter of public
policy. The obligation to support a child primarily rests with the natural
parents, and one who undertakes that task without any duty to do so generally
should not be punished if he or she should abandon it. On the other hand, a
husband who for years acts as a father to a child born to the wife, supports
that child, and holds himself out as the father to the child and to the world,
may be obliged to continue to support the child when he, for the first time,
renounces his apparent paternity in an attempt to avoid court-imposed support
obligations. It may be relevant, in deciding whether reliance was detrimental,
to know whether there once was an opportunity to pursue the natural father that
is now lost" (411 Mass 570, 575 [1992][emphasis
added]).
With this decision, this
Court supports a public policy that says a man should [*13]never
take on a parental role unless he wants to be unconditionally responsible for
the child's financial support.
Finally, it is not in the
best interests of the child in this matter that the order of filiation and
order of support be affirmed. The Law Guardian concedes that Mark D.'s
contributions to this child's life will only be financial. He has had no
contact with the child since March 2000. Unlike Matter of Sharon GG., where an
estranged husband fought to keep his parental rights, in this matter we have a
man fighting to divorce his financial interests from petitioner and her child. While it was in the best interests of the child in Sharon GG.
to maintain a relationship with an estranged husband who had filled the role of
father in every way, it should not be said here that it is in the best
interests of a child to have an order of filiation declare respondent to be her
father, a man, who in addition to having no biological tie, has no interest in
continuing a relationship with her or her mother.[FN2]
Accordingly, I dissent.
* * * * * * * * * * * * * * *
* *
Order affirmed, without
costs. Opinion by Judge Rosenblatt.
Chief Judge Kaye and Judges
Ciparick, Graffeo and Read concur.
Judge G.B. Smith dissents in
an opinion in which Judge R.S. Smith concurs.
Decided July 6, 2006
Footnotes
Footnote 1: This Appellate
Division order is brought up for review here by Mark's appeal of a later
Appellate Division order dismissing his objections to the child support order
(18 AD3d 551).
Footnote 2: See Mancinelli v
Mancinelli (203 AD2d 634 [3d
Footnote 3: As one court put
it, "[t]he law is not so insensitive as to countenance the breach of an
obligation in so vital and deep a relation, undertaken, partially fulfilled,
and suddenly sundered." (Clevenger v Clevenger, 189 Cal
App 2d 658, 674 [Cal Ct App 1961]; accord Pietros v Pietros, 638 A2d 545, 548
[RI 1994].)
Footnote 1:It
is arguable that because DNA and other tests were ordered prior to any decision
on equitable estoppel, the said doctrine should not apply here at all.
Footnote 2:Respondent
argues that his constitutional rights are being violated since he is being
deprived of his property in violation of the due process clauses of the federal
and state constitutions. We do not address this argument because of the view
taken with respect to equitable estoppel.
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