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Child Support of non biological children in the USA

Where is the ACLU when you need them.

If the child is not your biological child, must you pay child support? Courts have answered, Yes, and governments have tried to collect with a fervor. See Child Support Enforcement Amendments of 1984, P.L. 98-378, Section 18 as codified at 42 U.S.C. sec. 667. The state cognate is Chapter 460 of the Acts of 1993.

A judge may make you pay child support not because of your legal status but because of your behavior.  The judge is following the equitable doctrine of estoppel.

Under that doctrine, the court may hold that because you acted like a parent and permitted the child to rely upon you --  even though you were legally a "stranger" to the child.-- you adopted the biological or "real" parent's duty.

Once a court makes that determination, you the stepparent or friend or lover, the grandparent, or even the deceived husband, may not successfully deny a future obligation of support, because you have voluntarily in the past provided support.

So-called public policies are provided as excuses for requiring the nonbiological parent to pay or continue to pay child support when the relatioinship with the biological mother ends: the need for child support, taxpayers' relief from welfare relief, and the most insulting to a a rationale person: "society's desire to encourage, and not deter, the acts of the future `good samaritan.'"

Passing irony:  A bypasser, a good Samaritan, uses extraordinary efforts to save a car-accident victim, but the victim dies anyway.  The good Samaritan later suffers all kinds of pain and feelings of guilt because he was unsuccessful at saving the life of the victim.   Because he was not related to the victim, he could not collect for his mental injuries.  Does this encourage or deter "acts of the future `good samaritan'"?

This is result-oriented law, not justice.  The courts look past the mother in the "deceipt" cases and look instead to the voluntary provider, but, in contrast, do not saddle an insurance company with payments to the good Samaritan . . . although it would encourage future acts of good Samaritanship.

Estoppel Theory

Estoppel is a legal principle which, because of a person's previous act of conduct or omission, does not allow that person to assert a legal right.

The doctrine may apply when each of three elements exists: (1) an actual or implied representation which induces conduct or forbearance of another; (2) an act or omission by another, in reliance on that representation; and, (3) resulting detriment to the relying party.3

In the child support context, estoppel is a judgment in which a court concludes that a person my not equitably deny a future obligation to provide support; and thus, creates a formal and enforceable duty, where none previously existed for that person.

The triggering representation occurs when a stepparent, a grandparent or a legal "stranger" voluntarily promises to provide economically for a child to whom that person owes no legal duty of support; and/or he does so, in fact.

The relying party's conduct, or failure to act, consists of either releasing the other legal parent from his support obligation, or of failing to pursue a non-paying obligor; either at the request of the volunteer payor, or because the need to do so is eliminated by the voluntary support.

Detriment happens when the voluntary payor stops paying, but it is now too late, or futile, to seek support from the legal obligor.

Application to Child Support

In Massachusetts

In three cases, A.R. v. C.R., 411 Mass. 570 (1992), Liebson v. Liebson, 412 Mass. 431 (1992), and K.B. v. D.B., et al., 37 Mass. App. Ct. 265 (1994), the Supreme Judicial Court and the Appeals Court declined to mandate child support by estoppel. The courts did not find the facts sufficiently compelling to risk unfairly prejudicing the person who had previously given voluntarily support.

In A.R. v. C.R., the SJC held:
 

    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 parent. ... 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.

411 Mass. at 575.

However, the SJC further stated:   
 

    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.

Id.

In summary,  the Massachusetts SJC found:  the level of reliance was insufficient to outweigh the policy of encouraging voluntary help for children, because (1) the relationship between the putative obligor and child was brief, (2) the children were quite young when he objected to continued support, and (3) the children's access to support was unaffected by his actions.

In Liebson v. Liebson,  the husband briefly supported his wife's niece, whom they had rescued from the neglect-ridden home of her parents. The court remained conservative and and upheld the trial judge's dismissal of the wife's action for child support by estoppel.

In K.B. v. D.B., et al., the wife had committed adultery.  When she became pregnant, the husband openly doubted his paternity; but played the role of father to the child, attended her birth, placed his name on the birth certificate, arranged for her baptism, selected her godfather, lived with the mother and the child for two years, and provided financial and emotional support to the child.

The trial judge declined to order support, finding support in the genetic testing in favor of the husband and the lack of a financial detriment to be suffered by the child. Finally, the judge deferred Good Samaritan policy objective.

Despite the consistency of this case with the criteria set out by the SJC in A.R. v. C.R., the Appeals Court upheld the trial court, principally because the husband had expressed doubt about his paternity from the beginning and did not renounce paternity for the first time in order to defeat a court-imposed obligation. Also, the court did not find sufficient evidence of reliance and acknowledged the need to encourage voluntary support.

In California

In Clevenger v. Clevenger, 189 Cal. App. 2d 658 (1961), the court declined to order child support by estoppel, but identified the policy and set the parameters within which the doctrine should apply.
 

    There is an innate immorality in the conduct of an adult who for over a decade accepts and proclaims a child as his own, but then, in order to be relieved of the child's support, announces, and relies upon, his bastardy. ... If any legal hypothesis can prevent such an inducement to publication of illegitimacy, we should adopt that theory.

Id., at 664.

Estoppel would have been applied if the wife had demonstrated that:
 

    [T]he husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, [and] that the child was ignorant of the true facts. ... The child thus relies upon the husband's representation and does not attempt to find the natural father.

Id. at 671.

In those circumstances, the detriment to the child would have been that:
 

    (1) It would deprive the child of the potential action of the mother, as his guardian at the time of the child's birth, to hold the natural father liable for the support of the child. (2) It would induce the child to accept the husband as this natural father and render to him the affection and love of a son, with the son's reasonable expectation of care, support and education until adulthood. The reversal of this representation, through the publication of the illegitimacy of the child, inflicts deep injury upon him...[and]... (3) It would induce the child to hold himself out to the community as the natural son of the husband...only to suffer the abrupt removal of that status and to undergo the subsequent social injury.

Id.

In Marriage of Valle, 53 C.A. 3d 837 (1975), another husband was estopped from denying paternity and was ordered to support his in-laws' children. The court reasoned that he and his wife had continuously represented that the children were theirs: (1) they had brought the children into California from another country, (2) they had represented the children as their own to U.S. officials and on birth certificates, (3) the children referred to the husband as "Daddy," (4) not knowing the truth, the children had no contact with or memory of their natural parents, and (5) the husband was willing to support the children if he were given custody of the children. Id., at 841-42.

Since the husband's behavior effectively precluded any realistic opportunity to re-establish the relationship between the children and their natural parents, estoppel applied. Id., at 842.

In New Jersey

A key factor in New Jersey's invocation of estoppel against a stepfather, in Miller v. Miller, 97 N.J. 154 (1984), was his active rejection of the father's efforts to provide both economic and emotional support.

In A.S. v. B.S., 139 N.J. Super. 366, aff'd 140 N.J. Super.122 (1977), a second New Jersey court stressed that 12 years of voluntary support had cut off the chance of other parental ties and that absent estoppel, the child would be left rootless.

Similarly, in Savoie v. Savoie, 245 N.J. Super. 1 (1990), estoppel theory was applied to the support of a New Jersey grandchild, in the context of the grandparent's divorce action: the grandparents had assumed in loco parentis status since the child's third day of life, effectively precluding the child of mentally incapacitated parents from being adopted.

In Pennsylvania

Having heard the court in Clevenger, Pennsylvania, in Commonwealth ex rel Gonzalez v. Andreas, 245 Pa. Super. Ct. 307 (1976), used the legal doctrine of estoppel against a husband who accepted his wife's false statement that he had fathered a child born to her out-of wedlock, and who then supported the child.

Not doubting that he was the father and not wanting the child to become a public charge, the husband signed a paternity acknowledgement. He only questioned paternity after the parties separated.

Although the court's explanation was sufficient to show its reasoning, it conspicuously and provocatively failed to mention the woman's role in this sad charade:

 

    The representation of parentage inevitably obscures the identity and whereabouts of the natural father, so that the child will be denied the love, affection and support of the natural father. As time wears on, the fiction of parentage reduces the likelihood that the child will ever have the opportunity of knowing or receiving the love of his natural father. While the law cannot prohibit the putative father from informing the child of their true relationship, it can prohibit him from employing the sanctions of the law to avoid the obligations which their assumed relationship would otherwise impose.
     

Id. at 312.

In rejecting the husband's plea that he was supporting the child under the mistaken belief of his paternity, the court in Gonzalez further placed the responsibility on the husband to have ascertained the truth before undertaking to support, particularly where the wife had other illegitimate children.

The conclusion: In Pennsylvania, absent strong countervailing equities, such as fraud, when a "stranger" undertakes support, his misimpression of obligation will ripen into legal duty.

In Michigan

In Nyard v. Nyard, 156 Mich. App. 94 (1986), estoppel was upheld against a husband who knowingly committed to raising a child whom he knew to be fathered by another man and who had convinced his wife, therefore, not to place the child up for adoption.

Another court held that the time factor could be an instant: it estopped a man from denying a child-support obligation by the mere act of marrying the mother. In Johnson v. Johnson, 93 Mich. App. 415 (1970), the court ruled that since the husband-in-waiting knew the woman to be pregnant, he assumed responsibility for triggering the state's statutory presumption of paternity, theoretically cutting off recourse against the father.

But, a third court, in Tilley v. Tilley, 195 Mich. Ct. App. 309 (1992) held that the natural parents were still available for enforcement of support.

In Wisconsin, South Carolina, Florida, Virginia, Minnesota, Missouri, and Utah

In contrast, Wisconsin, South Carolina, Florida, and Virginia have declined to apply child support by estoppel. The reasons include insufficient representation of parental relationship with the child.

In re Marriage of A.J.N. & J.M.N., 141 Wis. 2d 99, 106 (1987), "mere statements" and "acting like a parent" were not enough to apply estoppel and order support.

In Walton v. Walton, 282 S.C. 164 (1984), acquiescence in name change and "friendly behavior" were insufficient to apply estoppel.

In Albert v. Albert, 415 S.E. 2d 818 (Fla. Dist. Ct. App. 1982), the application for a birth certificate was not conclusive evidence.

In NPA v. WBA, 8 V.A. App. 246, 253-4 (1989), the court found a mistaken belief of paternity to be a successful defense.

In Berrisford v. Berrisford, 322 N.W. 2d 742 (Minn. 1982), the child was too young to have relied.

Iin S.E.M. v. D.M.N., 664 S.W. 2d 665 (Mo. Ct. App. 1984), the court found that the absence of demonstrated detriment was fatal to estoppel claims.

In Knill v. Knill, 306 Md. 527 (1986), financial detriment must be demonstrated, not merely emotional detriment.

In Wiese v. Wiese, 699 P. 2d 700,702 (Utah 1985), the mother never attempted to collect from the natural father, therefore estoppel was not appropriate.

 

Child Support, Equitable Estoppel and Same-Sex Relationship

There are previously written articles about issues of equitable estoppel, which may result in non-biological parent being treated as a biological parent of the child. Recently, we came across a case, H.M. v. E.T., 2009 N.Y. Slip Op. 04240 (2nd Dept. 2009) that dealt with applicability of equitable estoppel to child support in a same-sex relationship situation.

In October of 2006, H.M., an Ontario resident, and the birth mother of a 12-year-old child, filed a “Support Application” with a Canadian agency, seeking to have E.T., a Rockland County resident, and H.M.’s former same-sex partner, adjudicated a parent of the child. H.M. also sought an award of child support retroactive to the date of the child’s birth.  In support of her application, H.M. alleged that in August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating. H.M. alleged that the parties then agreed that she would attempt to become impregnated via artificial insemination, and that after a child was born, they would parent that child together. H.M. alleged that pursuant to this agreement, and with E.T.’s assistance and encouragement, she became impregnated by sperm from an anonymous sperm donor. In September 1994, H.M. gave birth to the child. H.M. alleged that over the next few months, E.T. acted as a parent to the child by nurturing and caring for him. However, H.M. alleged that in January 1995, E.T. ended the parties’ relationship. H.M., who subsequently relocated with the child to Canada, alleged that after the relationship ended, she made numerous requests of E.T. for child support, all of which were refused.

After the child support proceeding was commenced in Canada, the case was transmitted to the Family Court, Rockland County pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B (hereinafter “UIFSA”).  Initially, the Support Magistrate found that under the present law of New York, there was no basis upon which the Family Court could adjudicate E.T. a parent of the subject child and require her to pay child support. In this regard, the Support Magistrate noted that E.T. was not the birth mother of the child or an adoptive parent of the child, never executed an official acknowledgment of parentage of the child, and was not in a legally recognized same-sex marriage or civil union with H.M. when she gave birth to the child. The Support Magistrate, pointing out that the Family Court is a court of law with limited subject matter jurisdiction, found no provision in Family Court Act Article 5, or in any other article of the Family Court Act, applicable to a controversy between a birth mother and another female concerning the other female’s parentage of a child. Finally, the Support Magistrate, deeming all of H.M.’s factual allegations to be true, and observing that equitable considerations might suggest that E.T. be adjudicated a parent of the child and required to pay child support, noted that the Family Court cannot grant equitable relief.

Subsequently, after the objections to the Support Magistrate’s Order were filed, the Family Court overturned the Support Magistrate’s Order citing cases where courts “held individuals responsible for the support of a child even though they were not related to the child by biology or adoption.” The Family Court observed that in those cases, the courts applied the doctrine of equitable estoppel which, the Family Court noted, will be applied in order to protect the best interests of a child born out-of-wedlock. Thus, the Family Court concluded that “a paternity proceeding [can] proceed against a same sex partner if circumstances are established justifying the [doctrine's] application.” Then, the Family Court, noting that the subject child was born as a result of E.T.’s “promises,” concluded that H.M.’s allegations, if true, could support a finding that E.T. “should be estopped [from denying] her role as a person responsible to provide support for [that] child.” Accordingly, the Family Court directed a hearing to determine whether E.T. “should be equitably estopped [from denying] her responsibility to provide support to the subject child.”

E.T. appealed from the order of the Family Court. The Appellate Division, Second Department, reversed the Family Court’s order and reinstated the order of the Support Magistrate dismissing the petition. The Appellate Division stated that the basic premise of the petition was that  H.M. who was never married to or in a civil union with E.T., sought to have E.T., a woman having no biological or legal connection to the subject child, adjudicated a parent of that child and required to pay child support. Since the Family Court received H.M.’s support application pursuant to UIFSA, it was authorized to determine “parentage” (Family Ct Act § 580-301[b][6]; § 580-701). UIFSA provides that in deciding such a proceeding, the Family Court is required to apply the procedural and substantive law generally applicable to a “similar” proceeding originating in this State, and may only exercise whatever “powers” and provide whatever “remedies” that are “available” in such a proceeding.

The only proceeding in this State “similar” to a proceeding for a determination of “parentage” is a proceeding pursuant to Family Court Act article 5. Yet, as the Support Magistrate recognized, Family Court Act article 5, entitled “paternity proceedings,” only provides a vehicle for resolving controversies concerning a man’s fatherhood of a child.  After analyzing the language of the Family Court Act, the court concluded that a paternity proceeding requires “the male party” to be “the father” of the child.

The court further held that although the doctrine of equitable estoppel can be applied in a proceeding pursuant to Family Court Act  Article 5, when the Family Court applies the doctrine, the Family Court is merely precluding a party from “denying a certain fact”.  This is not the same thing as the Family Court granting equitable relief, something the Family Court lacks the power to do. Therefore, when the Family Court applies the doctrine, the Family Court is doing so as a means of granting relief specifically authorized by the Constitution or statute. That is, the Family Court is applying the doctrine as a means of adjudicating a “male” “the father” of a child. However, H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant. Under these circumstances, the Family Court could not apply the doctrine, and could not reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief.

The logic of the Appellate Division’s decision, its heavy emphasis on the language of the Family Court Act, and especially the use of the term “male”, raise the question of whether a different result would have been reached on these facts if both parties to this litigation were male. Since recent decisions in this area of family law have been gender neutral, it seems likely that the Court of Appeals, if the case is appealed, will likely focus on on whether any such applications should be considered on a gender neutral basis and also, even more importantly, whether the courts will move away from “paternity by estoppel” toward “parentage by estoppel” as a matter of equity. I believe that we may learn the answer to this question in the foreseeable future.

 

 

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