Long Island Family Law and Mediation Blog
The New York Family Court Act dictates that paternity proceedings can be initiated any time from the pregnancy of a mother until the child is 21 years of age. If a party makes a motion for DNA testing, the law provides that the court should order DNA or genetic marker testing unless the court finds, in writing, that the test is not in the best interest of the child due to equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata (a Latin term that means the issue has already been judicially determined). In any of these instances the court would not allow the test. As a New York City area, Long Island and Nassau County Child Support Lawyer, I have represented people on both sides of the estoppel issue. This blog will go into further explanations about equitable estoppel, which I have touched upon in other articles about child support and paternity.
As in most family law cases involving children, the finding to apply equitable estoppel must be found to be in the child’s best interests. Equitable estoppel is designed to not allow rights to be enforced against someone that would result in fraud or injustice. Equitable estoppel occurs when someone has held himself out as the father of a child. Someone may hold themselves out as the father of the child which, can commonly be done by exercising parenting time or providing support.
The highest court in New York State, the New York Court of Appeals has held that it is proper to invoke equitable estoppel to protect an already recognized child and father relationship that is in place. The case is Matter of Shondel v. Mark D., 7 NY3D 320 (New York Court of Appeals 2006). The court recognizes a big quandary faced by potential father’s in this case. If a man has doubts about whether or not he is the father, he has a choice to make before starting the father / child relationship. He can request a DNA test before assuming the role of father. This, of course, can have the effect of causing a strain on the relationship between him and the mother. On the other hand, he can jump right into the role of father and might be precluded from ever getting a paternity test again and being forever defined by the law as the father. It’s a tough dilemma because a court can later find that it is not in the child’s best interest to allow DNA testing because he has held himself out as the father. It is not required that the person who holds himself out as the father did so knowing that this representation was false. If someone, namely the child, justifiably relies on this representation, whether factual or not, estoppel can apply. Continue reading ›