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When DNA Doesn’t Matter: Paternity By Estoppel

Unfortunately, sometimes during family law litigation there can be a serious dispute regarding the paternity of one or more children involved in the case. Paternity can be significant because there are a number of crucial rights and obligations attached to being legally recognized as the father of a child.

For the father, this includes the obligation to support the child(ren) until the age of 21 or some other emancipation event, the right to custody or visitation, the right to object to adoption or foster placement (including adoption by the mother’s subsequent partner or spouse), and, often, the right to reasonably deny consent for the child to leave the state or country. Typically, the legally recognized father also has the right to share in decision-making with respect to a child’s health, education, and general welfare.

The child in question has the right to child support, the right to share in the father’s estate upon death, the right to take part of any claim for wrongful death or Social Security benefits, and the right to be covered as a dependent for health insurance purposes.

When the parents are married, the presumption is that the husband of the mother is the father of the child, unless otherwise documented. Where the parents are married after the birth of the child, the child is automatically “legitimized” unless otherwise provided. Other ways to determine paternity include a court finding or the signing of an acknowledgment of paternity.

However, when one or both parents refutes paternity after it is established, under New York law, there can be circumstances where the Court will not even permit for an inquiry (by DNA testing or otherwise) into who the father of the child actually is, and the refuting parties will have no further recourse. This is known as paternity by estoppel. In other words, both parents are “estopped” from claiming that the person who acted as or was recognized as the father prior to the litigation is no longer so.

Examples of this would be a wife claiming that her soon-to-be-ex husband’s child was actually a boyfriend’s, in order to try and deny the husband custody rights, or a man claiming that a child is not actually his because he doesn’t want to pay child support. In such cases, the court will look closely at the legal documentation (if there is an acknowledgment of paternity, if the parties were married at the time of or after the birth of the child, etc.) and, significantly, whether the alleged father held himself out as the father of the child.

In looking at whether or not someone “held themselves out” as father of the child, the court looks at factors such as:

  1. What other people were told (such as friends, relatives, teachers, health providers, etc.);
  2. Legal documentation;
  3. Prior involvement both through building a relationship with the child and providing support; and, most importantly;
  4. If the child views the man in question as their father, and would be harmed by having that taken away from them/having another person substituted.

If the court determines that the man in question held himself out to be the father of the child, had an established parent-child relationship with the child, and the child would be negatively impacted by this person no longer being their father, the court will issue an order that estops the putative parents from investigating or disputing paternity any further, even if it can easily be established that the man is question is not the biological father. Similarly, someone who did not act as a father and allowed for someone else to fill that role may also be estopped by the court from attempting to step in years later.

For example, in one case where a man found out that his elementary school aged child by an ex- girlfriend was not actually his, he was estopped from denying paternity because he had been paying support and exercising visitation with the child since birth, and the child knew him to be their father, and his family to be their family. In another case, a father who found out that the child he thought to be his was the product of an extramarital affair was able to have paternity by estoppel declared so he could continue having visitation and a parent-child relationship after the divorce with the mother was finalized.

What this means is if the court determines paternity by estoppel, a man who is not the biological father of a child (but acted as such in the past) will be accountable for all of the parent-child obligations that exist under New York and Federal law. By the same token, they are entitled to all the same rights. Just as a man who acted as a father but finds out he is not may be liable for child support, a man who finds out that he is not the father but wants a relationship can enforce his right to visitation and maintaining a relationship with the child. Overall, the takeaway is this: the courts will always put the child first, so if you aren’t sure, get a DNA test before telling the world about your new parental status.




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