The New York Court of Appeals has held that:
[A] man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature.
The case is Matter of Shondel J. v. Mark D.
The opinion indicates that under New York law the doctrine of estoppel in paternity matters focuses on the child and as such is gender neutral. The court demonstrated this neutrality by citing to a case where a wife was not allowed to challenge paternity when she had treated and accepted the husband as the father for two and half years before challenging his paternity and “permitted her husband and child to form strong ties together.”
The court also noted that when a man “acquiesced in the establishment of a strong parent-child bond between the child and another man” he would be precluded from asserting paternity because “the child would be harmed by a determination that someone else is the biological father.”
This case reminded me of Jared Diamond’s, The Third Chimpanzee. In that book he noted that one study indicated that 10% of babies in the study were not biologically related to the legal father. One blog has dug into the mistaken paternity numbers issue and lists several studies before concluding that the rate may be closer to 2-4%.
By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%). The full paper is How well does paternity confidence match actual paternity? Evidence from worldwide nonpaternity rates by Kermyt G. Anderson.
Which bring us to the dissent in the case. Judge Smith argues forcefully that the evidence shows that the mother lied and committed fraud (she swore she did not have sexual relations with any other man) and that the ostensible father did not commit a fraud of any sort and as such should not be subject to the doctrine. The argument denies the majority’s position that the child is the one upon whom the fraud is committed.
The majority opinion countered the dissent by putting the problem this way:
Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.
Thus it seems that if someone is in that high doubt range that Anderson documents, he should ask for a paternity test and risk his relationship with his wife.
I do not claim to have an answer here. I am merely teeing this one up to see what comments if any can enlighten me on the issue of when paternity should be found despite a lack of biological connection between the father and child.