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NON-BIOLOGICAL PARENTS MAY HAVE RIGHTS IN GAINING CUSTODY OR VISITATION

By Sari M. Friedman, General Counsel
FRANY and FRALI


A new precedent setting Appellate Court decision in August 1998 may have opened the door for non-biological fathers to claim custody or visitation rights even when the biological parent is not unfit. With this Appellate decision, the court has perhaps belatedly recognized changing lifestyles and the need to make decisions based on the best interests of the child.

Before this decision last year, a biological parent who had not abandoned his or her child and who was not deemed to be unfit, had a paramount right over all others concerning custody. For years, the courts have recognized only biological and adoptive parents and grandparents in granting custody and visitation rights.

Applying the Doctrine of Equitable Estoppel

According to Webster's New Collegiate Dictionary, the word estoppel means "a bar to alleging or denying a fact because of one's own previous actions or words to the contrary." Equitable Estoppel is used in the interest of fairness to prevent an injustice to someone who relied on something in good faith. This could be the non-biological father or mother who held him or herself out to the world as parent of the child.

The most common situation in which the doctrine of Equitable Estoppel has been applied in custody and visitation matters, is when the mother attempts to state that the husband is not the father, even though the child was born during the marriage and both parents were having sexual relations with each other, at the time of conception. At the same time, both have held the child out to the world as the child of the husband and the husband has assumed all responsibilities of fatherhood.

The doctrine would also be applied when the father seeks to end child support and paternity after he learns he is not the child's biological father. The father, in this instance, would be estopped from asserting lack of paternity when he had never before disputed or questioned this fact.

The doctrine has also been used in situations where the parents were never married, but the father has consented to paternity. If, on learning that he is not the biological father, he asserted lack of paternity for the sake of ending child support payments when clearly he had never before disputed or questioned that fact, he would be estopped by the court. Years ago, this doctrine was also applied to prevent a child from being bastardized and losing inheritance rights.

The Case That Made the Difference


There have been many cases in which a mother's paramour or a child's step father have attempted to seek custody or visitation with the mother's child, only to have their application dismissed if the mother was not deemed unfit. The case of Maby H v. Joseph H, is in fact the first time a paramour or step father fully asserted the doctrine of Equitable Estoppel and won a ruling on appeal.

In Maby H., the mother was pregnant at the time she had begun dating Joseph H. in December 1987. Obviously, the child she carried was not his. Knowing this, he nevertheless placed his name on the child's birth certificate, and in May 1988, when the child was born, he and the mother began living together. From that day on, they held the child out as Joseph H's child. He obtained insurance for the child, provided support for the child, and maintained a father-daughter relationship with the child.

The parties were married in October 1990. Joseph H.¹s parents assumed a grandparent-grandchild relationship with the child. In 1992, the parties had a second child, a son. In June 1995, the mother began a divorce action against Joseph H. and sought a declatory judgment determining that Joseph H. was not the daughter's biological father, thereby granting her full custody of her daughter and denying any visitation rights to him.

The daughter was informed that the only father she had ever known was not her real father, and that caused the daughter-father relationship to be strained. In the meantime, Joseph H. applied to the court for custody and visitation rights with both children. Even though the court noted that to sever the father-daughter relationship after seven years could only be detrimental to the child and that Joseph H. was the daughter's psychological parent, nevertheless they ruled that he had no rights to custody or visitation with the daughter because he was not a biological parent and the mother was not unfit.

The court's decision was based on decisions in prior similar cases without consideration of Equitable Estoppel and the best interests of the child. Joseph H. appealed that decision. The Appellate Court separated this case from all similar past cases because the father here had fully and completely asserted Equitable Estoppel and all of its elements. The Appellate Court clearly stated that "(t)he paramount concern is applying equitable estoppel in custody, visitation and child support cases has been, and continues to be, the best interests of the child."

As a result, the courts today are more inclined to impose equitable estoppel to protect a parent-child relationship unless it can be shown that it is not in the child's interest to do that. The Appellate Court decision was based on the fact that a true family relationship and parent-child relationship had been established. The non-biological father, Joseph H. was the only father figure in the daughter's life and the daughter always believed that Joseph H. was her biological father. The Appellate Court also noted that public policy, up to this point, had not always served a child's best interests. In reversing the lower court's decision, the Appellate Court directed the Trial Court to hold a best
interests of the child hearing, to determine if equitable estoppel should be applied to that case.

Conclusion

The Appellate Court ruling opens the door for non-biological fathers who have supported the mother's child and have developed a father-child relationship, and who have been a psychological parent to the child over a long period of time, to assert equitable estoppel when applying to the court for custody or visitation of that child when the parents separate. If you think you may be in this situation, consult a family law attorney to analyze the facts of your situation to determine if you have the necessary facts on your side to make this application.

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