Jean Maby H. v. Joseph H.

• Decision Date: 17 August 1998
• Citation: 246 A.D.2d 282,676 N.Y.S.2d 677
• Parties: , 1998 N.Y. Slip Op. 7410 JEAN MABY H. (Anonymous), Respondent, v. JOSEPH H. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 677

676 N.Y.S.2d 677

246 A.D.2d 282, 1998 N.Y. Slip Op. 7410

JEAN MABY H. (Anonymous), Respondent, v. JOSEPH H. (Anonymous), Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 17, 1998.

Samuelson, Rieger & Yovino, Garden City (Kieth I. Rieger, Richard L. Hause, Michelle M. Mini, and Wendy B. Samuelson, of counsel), for appellant.

Alexander Potruch, P.C., Mineola, for respondent.

Before THOMPSON, J.P., and JOY, GOLDSTEIN and LUCIANO, JJ.

JOY, Justice.

The question raised on this appeal is whether a nonbiological parent may invoke the doctrine of equitable estoppel to preclude the biological parent from cutting off custody or visitation with the child. Under the particular circumstances of this case, the answer must be in the affirmative.

When the plaintiff, Jean Maby H., and the defendant, Joseph H., began dating in December 1987, the plaintiff was already pregnant with the subject infant, Kelly H., who had been fathered by a man other than the defendant. The parties began to live together at about the time that Kelly was born in May 1988. They were married in October 1990, and in March 1992 the plaintiff gave birth to the parties' son, Todd H.

The plaintiff commenced the instant divorce action in June 1995, seeking, inter alia, custody of Kelly and Todd, child support solely for Todd, and a judgment declaring that the defendant was not Kelly's father. Simultaneously with the commencement of the action the plaintiff moved for pendente lite relief, including, inter alia, an order granting her sole custody of Kelly and Todd and denying the defendant any visitation with Kelly. The defendant cross-moved, inter alia, for an order granting him custody of both Kelly and Todd and/or visitation rights with both children, alleging that over the years he had developed a father-daughter relationship with Kelly and that Kelly had been held out at all times and by all concerned as his daughter.

On September 21, 1995, the court granted the defendant temporary visitation with Kelly and Todd; however, the court subsequently ordered a hearing on the limited issue of whether the defendant could invoke the doctrine of equitable estoppel to preclude a challenge to his fatherhood of Kelly.

In its memorandum decision issued after the hearing, the court noted that, although the defendant conceded that he was not Kelly's biological father, he was present at Kelly's birth, and the parties had lived together for approximately two years after Kelly's birth before they were married. The court further noted that:

"There is no doubt that while the plaintiff knew that defendant was not the father of her daughter she did hold him out as her daughter's father for purposes of medical insurance, medical treatment, attendance at school and with respect to neighbors and friends, although family members and certain friends knew that defendant was not the biological father. Plaintiff's daughter called and referred to defendant as 'Daddy', and plaintiff did not object to the use of such appellation. Defendant has also contributed to the support of plaintiff's daughter.

Plaintiff's daughter was permitted to develop a typical grandparent-grandchild relationship with defendant's parents, and on the evidence submitted it is clear that a father-daughter relationship between defendant and plaintiff's daughter existed as well. Despite plaintiff's challenges to the qualitative nature of that relationship, it did exist, defendant performing many of the usual functions of a father with respect to a child".

After determining that there was no claim by the defendant that the plaintiff was an unfit parent, the court addressed the proof regarding equitable estoppel:

"In this case, the evidence seemed to suggest that defendant has established a prima facie basis for the application of equitable estoppel. Although he is not the biological father, he has been held out as plaintiff's daughter's father, a father-daughter relationship has been established, and defendant has provided support. It is difficult to comprehend how severing that relationship after more than seven years can be anything but detrimental to the girl. Despite having been informed that defendant is not her biological father, defendant is the only father she has ever known. Their relationship is now strained, due, in part, to plaintiff's efforts. Nevertheless, the expert evidence suggests that relationship can be repaired, and that the defendant remains the 'psychological' father".

Notwithstanding its determination that the "application of equitable estoppel [appeared] warranted in this case", the court concluded that Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 517 N.Y.S.2d 932, 511 N.E.2d 75, and Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27, precluded such application since, in its view, the doctrine was inconsistent with those cases. The court read Matter of Ronald FF. v. Cindy GG. (supra) and Matter of Alison D. v. Virginia M. (supra) as standing for the proposition that a nonbiological or nonadoptive parent could never seek custody or visitation. The court also concluded that since there was no evidence that the plaintiff was unfit as a parent, the defendant could not seek custody of Kelly, relying upon Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, and its progeny. Thus, the court concluded that the defendant was not entitled to seek or obtain custody of or visitation with Kelly. We now reverse the order entered upon the decision.

In general, the doctrine of equitable estoppel "is imposed by law in the interest of fairness to prevent the enforcement of rights which would work [a] fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought" (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265; see, Matter of Boyles v. Boyles, 95 A.D.2d 95, 97, 466 N.Y.S.2d 762; Matter of James BB. v. Debora AA., 202 A.D.2d 852, 853, 609 N.Y.S.2d 361; Matter of Ettore I. v. Angela D., 127 A.D.2d 6, 12, 513 N.Y.S.2d 733).

Courts have recognized the availability of this doctrine as a defense in various proceedings involving challenges to paternity (see, e.g., Matter of Lorie F. v. Raymond F., 239 A.D.2d 659, 657 N.Y.S.2d 235 [former wife estopped from seeking to compel former husband to undergo HLA blood test to determine parentage after having represented him as the father of the child for eight years and encouraged the development of a parent-child relationship]; Matter of Louise P. v. Thomas R., 223 A.D.2d 592, 636 N.Y.S.2d 408 [father estopped from challenging six-year-old order of filiation and support after mother informed him he was not the child's biological father] ), including cases where there is evidence that the person seeking to avoid estoppel is not a biological parent (see, Matter of Richard W. v. Roberta Y., 240 A.D.2d 812, 658 N.Y.S.2d 506 [biological father, who was not wed to mother, estopped from establishing paternity after silently acquiescing for over one year as the mother's husband and the child in question formed a father-daughter relationship before filing petition for an order of filiation]; Mancinelli v. Mancinelli, 203 A.D.2d 634, 610 N.Y.S.2d 104 [the husband, who was aware at the time of the child's birth that he may not be the father, was estopped from denying paternity in order to avoid child support obligations after he "acknowledged and acquiesced in the parent-child relationship" for more than two years] ).

The paramount concern in applying equitable estoppel in these cases has been, and continues to be, the best interests of the child (see, Matter of Louise P. v. Thomas R., supra, at 593; Matter of Glenn T. v. Donna U., 226 A.D.2d 803, 640 N.Y.S.2d 297; Matter of Ettore I. v. Angela D., supra, at 13, 513 N.Y.S.2d 733).

In Matter of Boyles v. Boyles (supra), the child was born during the course of the parties' remarriage and upon their subsequent separation the husband obtained temporary custody of the child. The wife, who was the biological mother, brought a petition seeking custody of the child alleging that the husband was not the child's biological father. The Appellate Division, Third Department, concluded that "under the traditional theory of estoppel, [the wife] should be barred from now asserting [the father's] lack of paternity for the purpose of obtaining custody without showing that the child's best interests will be served thereby" (Matter of Boyles v. Boyles, supra, at 98, 466 N.Y.S.2d 762).

Similarly, in Matter of Lorie F. v. Raymond F., 239 A.D.2d 659, 657 N.Y.S.2d 235, supra, a former wife was estopped from seeking to compel her former husband to submit to genetic testing to prove his lack of parentage. In that case, the parties were divorced and shared custody of the child, who had been born during the marriage, with physical custody granted to the former husband. One year later the former wife sought sole custody, alleging that the former husband was not the child's biological father. The Appellate Division, Third Department, affirmed the order denying her petition on the ground of equitable estoppel, stating that "any other determination would not have served the child's best interest" (Matter of Lorie F. v. Raymond F., supra, at 661, 657 N.Y.S.2d 235; see also, Matter of Kim Marie V. v. Michael S., 195 A.D.2d 985, 601 N.Y.S.2d 719 [in a divorce proceeding, the wife's petition to compel the husband to submit to a blood test was denied on the ground of equitable estoppel since the 5 1/2-year-old child, born during the marriage, had been supported by the husband all of her life, the husband wanted to continue his father-daughter relationship with the child, and the purported biological father denied paternity] ).

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