Beyond DNA: Equitable Parentage

Recently, there has been a rise in cases brought by fathers who want to maintain relationships with children who are not their biological offspring. For example, in a recent case, a mother was estopped from claiming her child did not belong to the man who had been his putative father, even though DNA tests indicated that he was not the biological father. This article explores the various approaches attorneys can use to help their clients in these circumstances.

A Case for Estoppel

Because the arguments for a man in this situation are entirely equitable, the attorney must develop a case to estop or prevent the mother from denying that the man is the father of her child. In the case mentioned above, heard in Illinois, where the equitable parent doctrine is not recognized, the father had been listed on the birth certificate but the DNA tests had not been performed when he filed his petition for visitation. The court found that a presumption arose from those facts as well as the fact that the mother had allegedly tricked the man into believing he was the child's biological father and had so represented him to the rest of the world. Counsel for the father cited an Illinois case in which a man asked for a mandatory injunction to allow visitation. The mother had lied to the plaintiff, originally telling him he was the father, and a de facto father-daughter relationship ensued for several years. The trial court dismissed his petition, but the appellate court reversed. Koelle v. Zwirin 284 Ill.App.3d 778, 672 N.E.2d 868 (Ill. 1st Dist. 1996).

It is less difficult to champion the putative father's rights in states such as Wisconsin, where the equitable parent doctrine is recognized. See J. J. vs. R. J, 162 Wis. Recently, the Wisconsin Court of Appeals held that the petitioner was the equitable father. In that case, the petitioner sought and received custody after the trial court found estoppel and the Court of Appeals employed the equitable parent doctrine. The doctrine is also recognized in Michigan. Atkinson v. Atkinson, 408 N.W.2d 516 (Mich. Ct. App. 1987), but states like Illinois, where it is not recognized, can use estoppel to reach the same results. The theory you use will depend on the law to be applied.

In many states, standing is determined on the date the action is filed. So, for example, if you represent a man who is not sure if he is the father, and you have an opportunity to have DNA testing conducted before you file the lawsuit, it might be better to wait until after the suit or petition is filed. In some states, the man might lose his standing if the DNA tests come out negative. For example, in the case above, the DNA test was indeed negative, but because it was done after the petition was filed, the court determined that the petitioner had standing as the father at that critical time.

Men have even sought custody under equitable theories. In In re Marriage of Moore 934 P.2d 572 (Court of Appeals of Oregon 1997), affirmed in 982 P.2d 1131 (Supreme Court of Oregon 1999), the husband asked for custody. He lost in the trial court, but won both appeals. The courts of review determined that the wife was equitably estopped from denying the husband's paternity. In Oregon the wife can be estopped from denying the husband's paternity, even if the husband knew or should have known that he was not the biological father. The record showed that the wife represented to public assistance authorities that her husband was the father. The court held, “It is clear that, even if wife informed husband that he was not the child's biological father, both he and the child nevertheless relied on her encouragement to develop a child-parent relationship. Wife cannot assert and deny fatherhood at her convenience.”

A New York court used estoppel to prevent a mother from claiming non-parentage when there was cohabitation. Jean Maby H. v. Joseph H, 246 A.D.2d 282, 676 N.Y.S.2d 677 (New York 1998). The mother had claimed the man was her daughter's father for purposes of medical insurance, and child support was paid. The court held that it was difficult to comprehend how severing the relationship after more than 7 years could be anything but harmful to the girl.

Best Interests of the Child

The most effective argument in these cases is the best interests of the child. While appointing guardians or counsel for children is not always the best course, an equitable parentage case might be an appropriate situation for it. Where there has been a refusal to provide visitation or a claim that the child no longer wants to see the petitioner, appointing someone as the eyes and ears of the court might make sense, particularly if the mother's best interests are. Statutes of limitations may also be a useful defense against denial of a parental relationship. For example, an Illinois appellate court barred the wife from alleging non-existence of a parent-child relationship within a reasonable time pursuant to the parentage statute of limitations. In re Marriage of Ingram, 176 Ill.App.3d 413, 531 N.E.2d 97 (Ill. 5th Dist. 1988). The parent-child relationship in that case was presumed by the birth certificate signed by the mother, which stated that the man in question was the child's father.

Key Evidence

In addition to the mother's conduct, there are other types of evidence to establish a father-child connection:

• Cards or birth announcements from either the mother or child referring to your client as the father;
• A period of cohabitation and bonding with the child;
• Child bears man's surname;
• Signed birth or baptismal certificates or school records;
• Pictures and/or videos showing familial bonds;
• Health insurance or hospital records naming your client as father;
• Federal tax documents containing admissions of parentage.

Furthermore, consider whether a tort claim can be made. For example, in Koelle, in addition to the injunction to provide visitation, the father brought separate counts for fraud, and intentional infliction of emotional distress. The trial court dismissed those counts as well, but was reversed. The appellate court held that the man had stated tort claims against the mother, finding that “public policy does not serve to protect people engaging in behavior such as that with which plaintiff's complaint charges defendant, and we will not allow defendant to use her daughter to avoid responsibility for the consequences of her alleged deception.” 672 N.E.2d at 875. (Illinois has also recently allowed a cause of action for intentional infliction of emotional distress stemming from domestic violence. Feltmeier v. Feltmeier, 333 Ill.App.3d 1167, 777 N.E.2d 1032 (Ill. 5th Dist. 2002))

Conclusion

Examining all the possible tools in your litigation arsenal, and selecting the right one, may make the difference between whether your client and a child have a happy, loving lifelong relationship, or become strangers forever.

Recently, there has been a rise in cases brought by fathers who want to maintain relationships with children who are not their biological offspring. For example, in a recent case, a mother was estopped from claiming her child did not belong to the man who had been his putative father, even though DNA tests indicated that he was not the biological father. This article explores the various approaches attorneys can use to help their clients in these circumstances.

A Case for Estoppel

Because the arguments for a man in this situation are entirely equitable, the attorney must develop a case to estop or prevent the mother from denying that the man is the father of her child. In the case mentioned above, heard in Illinois, where the equitable parent doctrine is not recognized, the father had been listed on the birth certificate but the DNA tests had not been performed when he filed his petition for visitation. The court found that a presumption arose from those facts as well as the fact that the mother had allegedly tricked the man into believing he was the child's biological father and had so represented him to the rest of the world. Counsel for the father cited an Illinois case in which a man asked for a mandatory injunction to allow visitation. The mother had lied to the plaintiff, originally telling him he was the father, and a de facto father-daughter relationship ensued for several years. The trial court dismissed his petition, but the appellate court reversed. Koelle v. Zwirin 284 Ill.App.3d 778, 672 N.E.2d 868 (Ill. 1st Dist. 1996).

It is less difficult to champion the putative father's rights in states such as Wisconsin, where the equitable parent doctrine is recognized. See J. J. vs. R. J, 162 Wis. Recently, the Wisconsin Court of Appeals held that the petitioner was the equitable father. In that case, the petitioner sought and received custody after the trial court found estoppel and the Court of Appeals employed the equitable parent doctrine. The doctrine is also recognized in Michigan. Atkinson v. Atkinson , 408 N.W.2d 516 (Mich. Ct. App. 1987), but states like Illinois, where it is not recognized, can use estoppel to reach the same results. The theory you use will depend on the law to be applied.

In many states, standing is determined on the date the action is filed. So, for example, if you represent a man who is not sure if he is the father, and you have an opportunity to have DNA testing conducted before you file the lawsuit, it might be better to wait until after the suit or petition is filed. In some states, the man might lose his standing if the DNA tests come out negative. For example, in the case above, the DNA test was indeed negative, but because it was done after the petition was filed, the court determined that the petitioner had standing as the father at that critical time.

Men have even sought custody under equitable theories. In In re Marriage of Moore 934 P.2d 572 (Court of Appeals of Oregon 1997), affirmed in 982 P.2d 1131 (Supreme Court of Oregon 1999), the husband asked for custody. He lost in the trial court, but won both appeals. The courts of review determined that the wife was equitably estopped from denying the husband's paternity. In Oregon the wife can be estopped from denying the husband's paternity, even if the husband knew or should have known that he was not the biological father. The record showed that the wife represented to public assistance authorities that her husband was the father. The court held, “It is clear that, even if wife informed husband that he was not the child's biological father, both he and the child nevertheless relied on her encouragement to develop a child-parent relationship. Wife cannot assert and deny fatherhood at her convenience.”

A New York court used estoppel to prevent a mother from claiming non-parentage when there was cohabitation. Jean Maby H. v. Joseph H, 246 A.D.2d 282, 676 N.Y.S.2d 677 (New York 1998). The mother had claimed the man was her daughter's father for purposes of medical insurance, and child support was paid. The court held that it was difficult to comprehend how severing the relationship after more than 7 years could be anything but harmful to the girl.

Best Interests of the Child

The most effective argument in these cases is the best interests of the child. While appointing guardians or counsel for children is not always the best course, an equitable parentage case might be an appropriate situation for it. Where there has been a refusal to provide visitation or a claim that the child no longer wants to see the petitioner, appointing someone as the eyes and ears of the court might make sense, particularly if the mother's best interests are. Statutes of limitations may also be a useful defense against denial of a parental relationship. For example, an Illinois appellate court barred the wife from alleging non-existence of a parent-child relationship within a reasonable time pursuant to the parentage statute of limitations. In re Marriage of Ingram, 176 Ill.App.3d 413, 531 N.E.2d 97 (Ill. 5th Dist. 1988). The parent-child relationship in that case was presumed by the birth certificate signed by the mother, which stated that the man in question was the child's father.

Key Evidence

In addition to the mother's conduct, there are other types of evidence to establish a father-child connection:

• Cards or birth announcements from either the mother or child referring to your client as the father;
• A period of cohabitation and bonding with the child;
• Child bears man's surname;
• Signed birth or baptismal certificates or school records;
• Pictures and/or videos showing familial bonds;
• Health insurance or hospital records naming your client as father;
• Federal tax documents containing admissions of parentage.

Furthermore, consider whether a tort claim can be made. For example, in Koelle, in addition to the injunction to provide visitation, the father brought separate counts for fraud, and intentional infliction of emotional distress. The trial court dismissed those counts as well, but was reversed. The appellate court held that the man had stated tort claims against the mother, finding that “public policy does not serve to protect people engaging in behavior such as that with which plaintiff's complaint charges defendant, and we will not allow defendant to use her daughter to avoid responsibility for the consequences of her alleged deception.” 672 N.E.2d at 875. (Illinois has also recently allowed a cause of action for intentional infliction of emotional distress stemming from domestic violence. Feltmeier v. Feltmeier , 333 Ill.App.3d 1167, 777 N.E.2d 1032 (Ill. 5th Dist. 2002))

Conclusion

Examining all the possible tools in your litigation arsenal, and selecting the right one, may make the difference between whether your client and a child have a happy, loving lifelong relationship, or become strangers forever.