Who's your daddy? Who's your mama?

The New York Court of Appeals has just told us that gays may not marry because the New York State Legislature has a rational basis for encouraging straights to marry by prohibiting gays from marrying. (Hernandez v. Robles, __NY3d__, July 7, 2006) I’m not sure I get that. Anyway, the view from Family Court is that gays are the only ones who seem to want to get married. After all, the out of wedlock birth rate in metropolitan areas approaches or exceeds 50% and the divorce rate has been hovering in that neighborhood for quite a while. Two married parents both raising their biological children together is a situation about as rare these days as your chance of having June and Ward Cleaver as neighbors. I guess the Legislature does need to encourage that sacred institution, though I’m not sure how prohibiting gays from marrying will have any measurable effect on the rate of straight marriages. Not surprisingly, there is no evidence—sound science I think it is now called—to support such a position. On the other hand, the high court has made it clear that the Legislature need not have evidence, only some conceivable rational basis.

If foolish consistency is truly the hobgoblin of small minds, then New York takes a back seat to no one. For example, we do let gays adopt—but not marry. So, there is a class of children—the most unfortunate—who, if they are lucky enough to find two people to adopt them but who happen to be gay, then those children’s parents must live in sin and they in a state of State sanctioned bastardy—as we used to say. I mean being a bastard used to be a real bitch but we never sanctioned it. Of course we used to say a lot of things about marital relations between the sexes that have now gone by the boards. If a guy got a girl in trouble that would mean she was knocked up and there could be a shot gun wedding so the parents would not have to shack-up and live in sin.

Well, we are more enlightened now and have improved on all that—haven’t we? Let me see if I’ve got this straight. Two gays can adopt a child but not marry—unless they happen to be of the opposite sex and that would be OK. Or, a straight guy and gay woman could both adopt and marry, that would also be OK. Or a gay guy and straight woman could adopt and marry, that too would be OK. Or a gay woman could donate an egg to a straight woman who could be inseminated by a gay guy and then adopt the baby and then marry another gay guy, that would be OK. Or a straight woman could buy an egg from a gay woman and have it inseminated by a straight guy and implanted in the womb of a gay woman and then she could marry a gay guy and they could both adopt the child, that too would be OK. Or, a straight woman and a straight man could donate an egg and sperm for in vitro fertilization and then implant the embryo in a bi-sexual woman and then they could adopt and marry. Or a bi-sexual man....all right hold on here, this is getting ridiculous. No rational person could doubt that the Legislature has given all of this a lot of thought and come up with the best answer so let’s leave this discussion for another day.

The real topic for today’s discussion are dads who really aren’t dads. They are un-dads—dads by estoppel. Where the Legislature fears to tread, the Judiciary rushes in. Bio-dads need not apply. In the classic case, it works like this. A man and a woman are involved in a relationship and a baby is born. The man truly believes that the child is his and so does the mother—sort of. That parting booty-call with her last boyfriend didn’t really count and anyway, he was wearing condoms. Three years later, the blush is off the rose and having been too blind to see the encouragement given to them to marry by the Legislature’s protection of that institution by prohibiting gays from marrying—they split. Mom now wants dad completely out of her life and tells him it ain’t his kid. Or dad wants to fly the coop because he has heard on the street that she was fooling around at the time of the magic moment. To Family Court they go and the Law Guardian says, “Judge, both parents are estopped from questioning paternity because each held themselves and the other out to be the parent and the child has come to look upon them in that manner.” Point, game, set, match. No DNA tests. Order of Paternity entered. Now is this a good idea? Well, maybe it is and maybe it isn’t, but the Court of Appeals thinks so and they just laid down the law in Shondel J. v. Mark D. (__NY3d__, July 6, 2006).

There is nothing factually interesting about this case, except for the majority and dissent’s polar view of the highly disputed facts. But the Court of Appeals uses it as a vehicle to straighten out the law of equitable estoppel in paternity cases. Let’s see how they did. Their holding is this: “We hold that a man who has mistakenly represented himself as a child’s father may be estopped from denying paternity...when the child justifiably relied on the man’s representation of paternity, to the child’s detriment.”

Several questions pop out of this holding immediately. First, does it apply if the father is not mistakenly representing himself as the bio-dad? What if he knows that he is not? What if the affect on the child is the same? How would it matter to the child if the father’s claim was made in good faith or in bad faith. Is stepping up to the plate if he knows he is not the father an act of bad faith? What if the father acts in disregard of the truth by putting his head in the sand? Don’t ask, don’t tell. How does a child act in “justifiable” reliance on the man’s representation? Can a child act unjustifiably?

“The purpose of 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.” This is obviously a correct statement of the law but it has a disconnecting aspect when applied to a paternity case. Read as above, it would mean that a man, who has a right to deny paternity and demand a paternity test, could not do so because the child was led to believe that such a right would not be asserted. Of course, the child was no part of such a bargain and had no awareness that such a right could be asserted by his “father.”

The Legislature has incorporated the common law of paternity estoppel in a procedural provision of the Family Court Act. Sections 418(a) and 532(a) provide that no DNA tests may be administered until the Court has resolved the issue of equitable estoppel. How to resolve that issue is not that clear. Allowing a finding of paternity, irrespective of biological fatherhood, (read “psychological parent”) solves the problem, we are told, of the potential psychic damage to the child if a relied upon father-child relationship is suddenly terminated. Does it? Is it better to let the child pass through childhood and learn the truth when he or she becomes an adult? Will the damage be less then? What if the child finds out about it on the street when she is 13? Is that better? What if the estopped father has now abandoned the child? What if the mother was duplicitous and the real father would have stepped up to the plate right away? Doesn’t matter. “Under [FCA §§ 418(a) and 532(a)], the mother’s motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served.” Does this mean that the Court can find that the man is equitably estopped from denying paternity but still order a DNA test under certain circumstances. For example, what if the estopped father was recently convicted as a child abuser. What if he was just an unemployed no-account. On the other hand, what if the child found some papers in the attic and knew the man wasn’t his real dad but the man was the father of the year and a no-account bio-dad has filed for paternity? What if the man applying for paternity is, say, three notches better as a father than the equitable estopped father—or just two notches? Does the equitable estoppel test get us to a best interest contest between the bio-dad and the estopped dad? I don’t know, but it sure is an odd way to determine biological fatherhood.

One answer to this problem is for the Legislature and the Court to stop trying to dance on the head of a pin and recognize the difference between a psychological parent and a biological parent. This is really what they are doing when they try to shoe-horn these factually disparate situations into the principle of equitable estoppel. New York is way behind in this area of the law. Even Pennsylvania recognized the concept of a psychological parent ten years ago.

The other problem is that we are really losing sight of what is truly in the best interest of children. First, it is best for children that the identity of their biological parents be established at birth. Regardless of who registers, drives or cares for a car, the law requires that the car have a certificate of title to tells us who owns it. Society has the right to know from the start who is biologically responsible for a child. It seems that children are just as important as cars in this regard. When the right time comes, a child has the right to know who his or her parents are. Ask any adopted child if they would like to know who their biological parents are and the answer is overwhelmingly yes. This does not necessarily mean that they want to have a relationship with them or that they even want to meet them, but they have a right to know who they are. Aside from the personal reasons that make this good policy, compelling medical reasons also command it. With the advances in the treatment of inherited diseases and the prevalence of organ transplants, it is imperative that a child possess his or her biological ancestry.

The declaration of paternity usually carries with it rights of parenthood. Where does Shondel J. leave us in that regard? A brand new day I suggest; here’s why. In two cases decided about two decades ago, the Court of Appeals held that as long as a child was in the custody of a fit parent, there was no basis to grant a non-biological “parent” visitation with the child. (Matter of Ronald FF. v. Cindy GG., 70 NY2d 141 [1987]; Matter of Allison D. v. Virginia M., 77 NY2d 651, [1991]). In 1998, the Second Department decided Jean Maby H. v. Joseph H. (246 AD 2d 282) in which they held that equitable estoppel could be used as a basis to permit parenting time to a non-biological de facto or psychological parent. “We are of the opinion that the best interest of the child will not be served in this case if Matter of Ronald FF and Matter of Alison D. are blindly applied.” (Maby at 289, emphasis added.) In Shondel, the Court of Appeals notes that equitable estoppel has long been applied in paternity and support proceedings because: “Our reason has been and continues to be the best interests of the child.” To support that proposition they cite—yes, Jean Maby H. 1

This entire area is headed in directions that we can not predict—or control. Our communities and society will tell the courts where they want to go. It would be better if they were telling our Legislatures and our Legislatures were actually listening. The California Supreme Court last year decided a trio of cases in this area involving non-biological parents and child support. In Elisa B. v. Emily B. (117 P. 3d 660 [August 22, 2005]), the issue was who was a parent under the Uniform Parentage Act and could the doctrine of equitable estoppel be used to obligate a non-biological psychological parent to pay child support. In an action brought by the El Dorado County District Attorney (the government, in case you missed it), the court held that, yes, a child could have two mothers and the lesbian partner of the bio-mom was, under California law, a parent for the purposes of child support.

I predict that within a decade Judge Kaye’s brave dissent in Alison D., that a parent is a parent is a parent regardless of biology, will come to pass. Children will also be recognized to have a constitutional right of association to maintain contact with a person who has become a psychological parent to them, as set forth in Webster v. Ryan (189 Misc 2d 86) by a little known Albany County Family Court Judge. Both of these propositions find support in Justice John Paul Stevens’ dissent in Toxel v. Granville (530 US 57 [2000]), the grandparent visitation case:

“Cases like this do not present a bipolar struggle between parents and the State over who has final authority to determine what is in a child’s best interest. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies—the child....

While this Court has not yet had the occasion to elucidate the nature of the child’s liberty interest in preserving familial or family-like bonds, it seems to me that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” (Troxel at 86-88, citations omitted.)

So a bisexual man and woman have two gay friends who donate an egg and sperm for an IVF process and a straight woman who is married to a straight guy provides the gestational services and they meet up with a gay lawyer, a straight judge and a bi-sexual OB-GYN and they all walk into a bar.......

1. The Trial Bench and Bar have a right to be duly confused by the appellate courts. The Maby case was the Second Department’s flat out approval of the use of equitable estoppel in custody and visitation cases. This position has also been approved by the Fourth Department in Gilbert A. v. Laura A. (261 AD 2d 886 [1999]). The Third Department cited Maby approvingly in a paternity case in Kristen D. v. Stephen D. (280 AD 2d 717 [2001] but eight months later they declined to extend it to custody and visitation cases in Multari v. Sorrell (287 AD 2d 764). Then, in a case of judicial amnesia, the Second Department took up the issue again in Janis C. v. Christine T. (294 AD 2d 496 [2002]). In Janis C., the trial court, relying squarely on Maby, held that equitable estoppel provided a basis for granting standing to a non-biological parent to assert parental rights. In reversing the trial court, the Second Department never cited their own decision in Maby. I know what you’re thinking—foolish consistency is the hobgoblin of small minds. The only difference between Maby and Janis C.? Maby involved a psychological father and Janis C. was the gay partner of the bio-mom. Hmm???