Who or what is a "parent"?

Copyright of the New York Law Journal and Marion TD Lewis. ALL RIGHTS RESERVED.

Equitable Paternity: How the New York Court of Appeals’ decision in “Shondel” could grant same sex couples standing in support, custody and visitation (Originally published in the New York Law Journal)

Recently the New York Court of Appeals ruled that a man who had no biological link to a child but who was deceived by his paramour into thinking that he was the father, would be equitably estopped from denying paternity. The Court opined that a man who "acted like a father would be treated like a father,” to protect the child’s best interest.[1] The impact this ruling could have on same sex couples and the children of their unions is potentially significant.
The Respondent in Shondel is a heterosexual resident of New York who had consensual sexual relations with a woman while on a visit to Guyana. Upon his return to New York he was told by his paramour that she was pregnant with his child. Though the parties were never married or cohabited nor had evinced a desire to become a family unit, the Respondent accepted paternity without challenge. He supported the child from birth, never petitioning the Court for a genetic marker test or obtaining an order of filiation.

After several years the relationship between mother and father soured. A child support proceeding ensued. The mother demanded retroactive child support. The father counter-sued for visitation. A paternity test was ordered. It turned out the “father” and child did not share the same DNA. He was not the biological father. The man then moved to terminate the order of support. He argued that because he had been deceived and was not the biological father of the child, and because he had no intention of adopting the child, that he should not be liable for child support—even though he had “acted like the father of the child.”

The Court of Appeals disagreed, affirming the opinion of the New York Family Court which had ruled that the Respondent was the father by estoppel. The Court found that the Respondent is “equitably estopped from denying paternity”[2] when he had held himself out as being the father of the child and had been providing support to the child even prior to the child’s birth. The Court stated, "[T]he potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given."
There is a whole cocktail of case law on the subject of paternity, child support and equitable estoppel. Same sex couples have tried to use equitable estoppel arguments to challenge custody or visitation orders without much success. “Current state law among the Second, Third and Fourth Departments, at least as far as custody and visitation, is that there is no doctrine of equitable estoppel that is available to confer standing on a ‘legal stranger’ to seek custody or visitation.”[3] In matter of C.M. stands for the notion that a legal stranger is anyone who is not a “parent, sibling or grandparent.”

Whether an individual in a same sex relationship who is not the biological or adoptive parent of a child would have standing to petition the Court for or in objection to an order of support after the Court of Appeals decision in Matter of Shondel, is the question at bar. Are same-sex couples (whether by domestic partnerships, civil unions or marriages) “parents” simply by virtue of their intent to be a “family unit” and their “holding themselves out as parents?”

Prior to the ruling in Shondel, in order for a gay or lesbian partner to be considered a “parent” of a child conceived during the time their family unit was intact, he or she must be the biological parent, or must have legally adopted the child. Otherwise, the only legal status said individual would be accorded in the child’s life is probably that of “legal stranger.”[4] “The Court of Appeals rejected the argument that the definition of ‘parent’ under the New York statutes included de facto parenthood or parent-like relationships even though the domestic partner involved in the case had ‘acted and been treated like a parent to the subject child.’” The Court stated that “the doctrine of equitable estoppel no longer exists to confer standing to non-parents to seek custody or visitation.”

A parent’s right to care for, support and control his or her “children” has been deemed fundamental.[5] The C.M. Court ruled that “the doctrine of parens patraie [] cannot trump a legal parent’s constitutional right [and obligation] to the care and custody for his or her own children.” Further, the C.M. Court, endorsing the United States Supreme Court’s narrow definition of “parents” for purposes of custody, emphasized the Court’s view that a parent has a “protected liberty interest under the 14th Amendment of the United States Constitution to the ‘care custody and control of his or her own children.’”[6] This ruling impliedly imposes a corresponding duty on “parents” to be solely responsible for the [financial] care of their own children. The challenge becomes determining who is a parent according to the state and federal laws and who would and is liable for support given the ever changing familial structures and the “novel and complex familial relationships”[7] that continue to abound. For, it is well settled that “only a parent can be charged with the support of a child.”[8]

In New York, while same sex couples can adopt children together,[9] they cannot marry—thus form the basis of a legally recognizable “social institution that best forges a linkage between sex, procreation and child rearing.”[10] Furthermore, same sex couples are not considered legal “spouses” in New York unless they were married in a jurisdiction to which New York extends comity.[11] Traditionally when these relationships (whether domestic partnerships, civil unions or marriages) dissolve one of the partners would be left holding the short end of the stick as far as the children are concerned—if the party without a biological link had not adopted the child(ren). That person would not be viewed as a legal “parent.”

The Court of Appeals ruling in Shondel serves to stir things up a bit. The Court seems to push the definition of the word “parent” almost to its breaking point to include individuals who not only have no biological or adoptive link to a child, but merely “acted like a [parent]” towards the child. Who is a legal parent? To whom do all the appurtenant rights, duties and obligations of parentage extend? The Court seemed to say that a parent is anyone who “acted like a parent,” irrespective of the circumstances of that person’s actions. The Respondent in Shondel, for instance, had no biological link to the child. He never adopted the child. He was never married to or cohabited with the child and the child’s mother. Therefore there was no “presumption of paternity.” The parties had never evinced any intent to be a “family unit.” Rather, the Respondent wrongly assumed, based on the misrepresentation of his paramour, that he was the child’s biological father. He “acted like the child’s father” by, among other things, allowing the child to carry his last name; signing papers to allow the child to obtain immigration documents; buying the child gifts; holding the child out to his community as his offspring; and allowing the child to call him “daddy.” The Court of appeals found that his conduct prevented him from denying paternity even though he was biologically unrelated to the child.

The fact that the parties in Shondel were never married, had never cohabited, nor had they ever engaged in an exclusive familial relationship, is relevant. Traditionally, equitable estoppel operates to protect a child’s best interest, particularly where the parties were married and the father’s paternity (or lack of it) would disrupt the child’s life, care and welfare. This is not only because of the presumption of paternity that exists in marriage, but also because society has traditionally “regulated heterosexual behavior to bring order to the resulting procreation and ensure a stable family structure for rearing, education and socialization of children.”[12]

Same sex relationships are probably not viewed as the most “stable family structure” that exists. Perhaps that is the reason same sex couples cannot marry in most states in the Union. In New York, the definition of marriage in the Domestic Relation Laws “expresses an important, long recognized public policy supporting, among other things, procreation, child welfare and social stability.”[13] Until quite recently, the New York courts did not perceive same sex couples as fit to adopt, and care for children—whether financially or otherwise—partly because of this appearance of “instability.”

In most countries around the world, except for Canada, Netherlands, Spain, Belgium and the Caribbean island of Antigua to name a few, the right of gay and lesbian couples to legally marry has been proscribed.[14] Thus same sex couples have not traditionally been held to a standard of “bringing order to the resulting procreation and ensure a stable family structure for rearing, education and socialization of children.” While the United States Supreme Court “recognizes traditional, heterosexual marriage as a fundamental right pursuant to both equal protection and substantive due process liberty and privacy doctrines, ([and] New York apparently recognizes a parallel right”)[15] sexual orientation and the right of same sex couples to marry is not subject to the stricter equal protection analysis.[16] Same sex couples enjoy no fundamental liberty to any of the statutory benefits traditionally incidental to marriage—including, arguably, “rearing, educating, socializing, procreating, and caring for the welfare of children.” But times are changing.

In contrast to most states and Nations, the Commonwealth of Massachusetts extended the legal right to marry to same sex couples residing in the State with all the corresponding legal rights, duties and obligations thereto, in 2004.[17] In the landmark decision, the court considered the constitutional question:

Whether the Commonwealth may use its formidable regulatory authority to bar same sex couples form civil marriage…. [Citations omitted] the court concluded it may not do so, determining that the Commonwealth had failed to articulate a rational basis for denying civil marriage to same sex couples. The court stated that the Massachusetts Constitution ‘affirms the dignity and equality of all individuals’ and ‘forbids the creation of second-class citizens’. …. The court concluded that in ‘limiting the protections, benefits and obligations of civil marriage to opposite sex couples,’ the marriage license law ‘violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

Assuming arguendo that the Commonwealth was correct in its constitutional analysis—one may argue that the Massachusetts case does not serve as a particularly shining example of the stability of same sex unions and that the decision does not augur well for the future of same-sex marriages in the Union given the fast and furious dissolution of that groundbreaking union—did the New York Court of Appeals broaden the definition of “parent” enough to include same sex domestic partners, couples in a civil unions and same sex spouses who hold themselves out as “parents” though they may lack a biological link to or adoption papers for a child? Did the ruling in Shondel operate to turn what was once a “legal stranger” into an “equitable parent”? The petitioners in Goodridge had a minor daughter who will be protected by the child support laws of the Commonwealth without doubt. Both parties would probably have standing to petition the Court of Massachusetts for custody and visitation even if one party shares no biological link and did not legally adopt the child. Neither party could successfully argue that the other is a “legal stranger.” Both parties would probably be liable for child support by estoppel.

The Shondel Court has opened the door for same sex couples in New York to gain standing in child support, visitation and custody cases without the benefit of biology or adoption. It would seem disingenuous, if not unconstitutional, for the Court to now say that only heterosexuals can “act like parents and will be treated like parents.” The Court could not use the argument that its ruling is based on the fact that heterosexual marriages or relationships are “stable” and would “bring order to the resulting procreation and ensure a stable family structure for rearing, education and socialization of children.” There was nothing “stable” about the relationship between the parties in Shondel. The Respondent in Shondel did not have a relationship with the child’s mother. They were “legal strangers.” They were never married. They never cohabited. They never evinced an intention to become a “family unit.” They never mentioned wanting to “ensure a stable family structure” so that they could “rear, educate and socialize the child.” In fact, once he learned that he had been duped, the Respondent wanted nothing to do with the mother or child. He argued that it was not his duty to support the child. He had no desire to foster a parent/child relationship with an issue who bore no biological relationship to him. Yet, with no filiation, the court issued an order of support. The Court opined that its interest lay in protecting the child’s psyche and her “best interest,” suggesting that at least for now, similarly situated men will be prejudiced if they do not challenge paternity and demand a genetic marker test from the start.

Recently, the Onondaga Supreme court granted vacatur of a default order of filiation and directed a paternity test for an individual who, while incarcerated, had been ordered to pay child support. An order of filiation had also been issued by default. The petitioner challenged the orders on the grounds that there had been convincing evidence on the record that the mother had had sexual relations with another man at the time she conceived the child. Moreover, the petitioner had never had a “parent/child relationship” with the subject child. In vacating the order of filiation, the Court of Appeals stated, “the Court finds that equitable estoppel will not apply since it is in the best interest of the child to go forward with testing to determine if the petitioner is the child’s father in view of the child’s age and the fact that the petitioner has no relationship with her.”[18] That Court clearly found the existence of a biological link to be of paramount importance in its analysis of whether an individual should be ordered to pay child support. The case is distinguishable from Shondel, however, in that the Respondent in Shondel had clearly “acted like a father,” whereas the Respondent in the case at bar clearly had not.

As the definition of family continues to evolve, same sex couples will likely obtain the right to marry in most states eventually. But until then, Shondel will arguably protect children of same sex couples in New York who were neither adopted by nor share a biological link with, a partner who subsequently leaves the familial relationship. That individual would now seem to have a legal duty pursuant to Shondel to support any child to whom he or she “acted like a father [or mother].” The ruling will also empower same-sex couples who seek standing to challenge custody and visitation orders. Such individuals may argue that equity demands that the pendulum should swing both ways. If same sex domestic partners are “parents” by estoppel where child support is concerned, then they are “parents” for purposes of visitation and custody.

Shondel stands for the principle that a “parent” does not necessarily have to have a biological link to the child in order to be liable for the support of the child. Nor does a “parent” have to have adopted the child. While there does not appear to be any magic ingredients, the Court seems to say that the definition of a parent will turn on the actions of the adults and the expectations of the child. A parent is essentially a person who holds him [or herself] out as having a parent/child relationship with that child; a person who establishes ties with the child; a person who knowingly or unknowingly assumes financial and emotional responsibility for a child with whom they may or may not share a biological link, or may or may not have legally adopted.

Shondel will force adults to take the role of parenting seriously. The Court will protect the child’s best interest no matter the consequences to adults who may find themselves involuntarily caught up in familial quagmires. The Court of Appeals suggests that it is emphatically not in the child’s best interest to have adults form bonds with each other, bring children into the union (by what ever means), then proceed to treat children with the same fickleness with which some adults approach their adult relationships. Marriages, whether heterosexual or same-sex can easily be broken. The Goodridges and Britney Spears make that abundantly clear. However, the New York Court of Appeals draws the line quite firmly when it comes to children. Thus, the Respondent in Shondel and Brad Pitt (and those inclined to emulate them whether heterosexual or same sex) should take note. When one purports to “act like a parent” even without the benefit of marriage, by, among other ways, giving a child one’s last name, buying gifts for the child, holding oneself out to the community as the child’s parent, allowing a child to call one “mommy” or “daddy,” one will be “treated like a parent” in the eyes of the law. Shondel is clear. A “parental” bond with a child, once formed, will be given full force, effect and credit. An adult cannot simply withdraw from the role of “parent” in a child’s life just because there is no biological link, and just because the adult relationship has terminated. Rather, the focus will be on protecting the rights, interests, lives and welfare of children who come to depend on and expect the continuation of that relationship and financial support. In same sex relationships, as in heterosexual relationships, Shondel will likely have far-reaching implications.

Copyright Marion T.D. Lewis, Esq., 2006All rights reserved

Marion T.D. Lewis is a graduate of New York Law School. She is a matrimonial and family law attorney and a former New York Elementary School teaching fellow. Email Ms. Lewis at marionthelawyer@aol.com
[1] In Matter of Shondel J. v. Mark D., 40, 2006 N.Y. LEXIS 1837.
[2] See Fam. Ct. Act sec. 18[a] and 532 [a].
[3] In Matter of C.M. v. C.H. 2004 NY Slip Op 24414; 6 Misc. 3d 361; 789 N.Y.S. 2d 393; 2004 NY Misc. Lexis 1916 (2004).
[4] See Alison D. v. Virginia M., 77 NY 2d 651, 572 NE 2d 27, 569 NY 2d 586 (1991)
[5] Troxel v. Granville (530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed 2d 49 [2000].) See, also In Matter of C.M. supra.
[6] Troxel v. Granville (530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed 2d 49 [2000].)
[7] See e.g. Thomas S. v. Robin Y., 209 AD 2d 298.
[8] In matter of Melissa S. v. Freder, 8 AD 3d 738, 777 NYS 2d 774, 2004 NY App Div. 7556.
[9] See, In re Adoption of Carolyn B., 6 AD 3d 67, 774 N.Y.S. 2d 227 (4th Dept. 2004).
[10] See, In re Adoption of Carolyn; See also, Hernandez v. Robles, 2005 NY Slip Op 9436.
[11] Derek B. Dorn, Same Sex Marriage Under New York Law, NYSBTA Journal, Jan. 2006, at 42.
[12] Hernandez Supra.
[13] Id. See, also, DRL
[14] See, e.g., Derek B. Dorn, Same Sex Marriage Under New York Law, NYSBTA Journal, Jan. 2006, at 42.
[15] Hernandez
[16] Id.
[17] See, Goodridge v. Department of Pub. Health, 440 Mass. 309, 798 NE 2d 941 (2003)(Goodridge).
[18] In Matter of I.T. v. C.R.