Marriage, parentage, and child support

Family Law Quarterly

Volumn 45, Issue 2, 2011, Pages 219-240

  Carbone, June ^a   Cahn, Naomi ^b  

^a UNIVERSITY OF MISSOURI KANSAS CITY   (United States)

^b GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 82655178598     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (160)

1. See Katharine K. Baker, Homogenous Rules for Heterogeneous Families: The Standardization of Family Law When There Is No Standard Family, Mar. 9, 2011, available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1782051 (courts increasingly rely on mechanical formulas in determining support).
2. Centers for Disease Control and Prevention, Unmarried Childbearing (2011), http://www.cdc.gov/nchs/fastats/unmarry.htm.
3. ANDREW CHERUN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN AMERICA TODAY (2009).
4. Michael H. v. Gerald D., 491 U. S. 110 (1989).
5. See, e.g., Leslie Joan Harris, The Basis for Legal Parentage and the Clash Between Custody and Child Support, 42 IND. L. REV. 611 (2009);
6. Katharine K. Baker, Asymmetric Parenthood, in RECONCEIVING THE FAMILY: CRITICAL REFLECTIONS ON THE AMERICAN LAW INSTITUTE'S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION (Robin Fretwell Wilson ed., 2006).
7. See NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES: LEGAL POLARIZATION AND THE CREATION OF CULTURE, Ch. 4 (2010).
8. See, e.g., Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 TUL. L. REV. 585 (1991).
9. Michael H. v. Gerald D., 491 U. S. 110 (1989).
10. See Vargo v. Schwartz, 940 A.2d 459, 467, nn. 3 & 6 (Pa. Super. Ct. 2007);
11. see also Pearson v. Pearson, 182 P.3d 353, 355-56 (Utah 2008) (rejecting paternity tests during an ongoing marriage).
12. Courtney v. M. Roggy, 302 S. W.3d 141, 149 (Mo. Ct. App. 2009).
13. See, e.g., In re J. W. T., 872 S. W.2d 189 (Tex. 1994).
14. Determining paternity, however, is a different issue from informing the child. Compare Callender v. Skiles, 623 N. W.2d 852 (Iowa 2001) (ordering father not to inform child)
15. with In re Richard W., 629 N. Y. S.2d 512, 514 (App. Div. 1995) (finding presumption of legitimacy should not be used to perpetuate a falsehood).
16. On the relationship between parenthood and identity, see June Carbone, The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity, 65 LA. L. REV. 1295 (2005).
17. Or none of the above? It is arguable that the definition of parenthood is not constitutionally compelled and the states are free to do as they like. See, e.g., Troxel v. Granville, 530 U. S. 57 (2000) (finding state law cannot override preferences of fit parents without overcoming a presumption that the parent's preferences are in the best interest of the child).
18. Compare Emily Buss, "Parental" Rights, 88 VA. L. REV. 635, 681 (2002)
19. (Troxel depends on the state definition of parenthood) with David D. Meyer, Constitutional Pragmatism for a Changing American Family, 32 RUTGERS L. J. 711, 714 (2001) (Troxel does not give the states unlimited discretion in defining parents).
20. Scalia describes the rights of biological father versus husband as a choice between ruling that "Michael... being unable to act as father of the child he has adulterously begotten, or Gerald... being unable to preserve the integrity of the traditional family unit he and Victoria have established." Michael H v. Gerald D., 491 U. S. 110, 130 (1989).
21. See, e.g., Justice Brennan refers to Scalia's "pinched conception of 'the family, '" id. at 45, and labels his "rhapsody on the unitary family" as "out of tune" with prior decisions. Id. He concluded that: We are not an assimilative, homogenous society, but a facilitative pluralistic one, in which we must be willing to abide someone else's unfamiliar or even repellant practice because the same tolerant impulse protects our own idiosyncrasies. Even if we agree, therefore, that "family" and "parenthood" are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do. In a community such as ours, "liberty" must include the freedom not to conform. The plurality today squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty. Michael H., 491 U. S. at 141 (Brennan, J., dissenting).
22. See LESLIE J. HARRIS, JUNE CARBONE, & LEE E. TEITELBAUM, FAMILY LAW 887 (4th ed. 2010).
23. UNIF. PARENTAGE ACT § 204. For varying perspectives on the marital presumption
24. see, e.g., Laura Morgan, Child Support Fifty Years Later, 42 FAM. L. Q. 365, 372-73 (2008);
25. Mary Patricia Byrn & Jenni Vainik Ives, Which Came First: The Parent or the Child?, 62 RUTGERS L. REV. 305, 337 (2010) (the presumption "is not in the child's best interest and does not guarantee the child's fundamental right to legal parents at birth");
26. Jana Singer, Marriage, Biology and Paternity, The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006) (critiquing the recent changes to the marital presumption and arguing that the policy goals of the presumption continue to be valid);
27. Rebecca Moulton, Note, Who's Your Daddy?: The Inherent Unfairness of the Marital Presumption for Children of Unmarried Parents, 47 FAM. CR. REV. 698 (2009) (criticizing the impact of the marital presumption on nonmarital children).
28. Callender v. Skiles, 591 N. W.2d 182, 190 (Iowa 1999).
29. In the Interest of J. W. T., 872 S. W.2d 189, 198 (1994). The majority rejected the dissent's argument for privileging the marital tie, objecting that to the dissent, the relationship between the mother and the biological father, "is morally judged, rather than legally judged, being dismissed as a mere 'dalliance.'" Id.
30. Approximately two-thirds of the states similarly allow the nonmarital father to challenge the marital presumption through either statute or case law. See, e.g., UNTF. PARENTAGE ACT, cmt. at § 607.
31. See also Fisher v. Tucker, 697 S. E.2d 548 (S. C. 2010) (South Carolina's statutory presumption of paternity within marriage can be rebutted by blood tests);
32. Watermeier v. Moss, 2009 WL 3486426 (Tenn. Ct. App. Oct. 29, 2009) (unpublished) (noting that Tennessee requires that, for the marital presumption to preclude paternity for biological father, the married couple needed to have lived together at the time of conception, remained together through the filing of the petition, and the husband needed to sign an affidavit attesting to biological paternity).
33. The UPA limits challenges to within two years of the child's birth. UNIF. PARENTAGE ACT § 607.
34. MO. REV. STAT. § 210. 826 (1) (2010)
35. cited in Courtney v. Roggy, 302 S. W.3d 141, 149 (Mo. Ct. App. 2009) (emphasis added in opinion).
36. See, e.g., Holder v. Holder, 340 P.2d 761, 763 (Utah 1959).
37. Pearson v. Pearson, 182 P.3d 353 (Utah 2008).
38. Vargo v. Schwartz, 940 A.2d 459, 463 (Pa. Super. Ct. 2007);
39. see also Brinkley v. King, 701 A.2d 176, 180 (Pa. 1997).
40. In re K. H., 677 N. W.2d 800 (Mich. 2004)
41. (quoting People v. Case, 137 N. W. 55, 56 (Mich. 1912).
42. See, e.g., Barnes v. Jeudevine, 718 N. W.2d 311 (Mich. 2006);
43. *1 (Mich. Ct. App. Jan 18, 2011).
44. J. N. R. v. O'Reilly, 264 S. W.3d 587 (Ky. 2008);
45. see Christopher J. Mehling & Matthew W. Swafford, A Biological Father's Rights Extinguished, 37 N. KY. L. REV. 343 (2010).
46. J. N. R., 264 S. W.3d at 590-91.
47. Cunningham, J., concurring, 264 S. W.3d 596, 597. Since then, state judges have questioned the likelihood that the ruling would contribute to family stability, observing that: It can be argued, however, that allowing the mother the discretion to influence the court's determination of paternity does not preserve the nuclear family, but rather undermines the institution of marriage by sweeping under the rug fidelity issues that often result in more damage to the family unit. Mehling & Swafford, supra note 36, at 359.
48. 264 S. W.3d 600, 600 (Scott, J., concurring, joined by Cunningham). Two subsequent supreme court opinions and several appellate court cases have struggled with the implications of J. N. R.'s strong defense of the marital presumption and concluded that the case is of little precedential value.
49. See Bailey v. Bertram, 2010 WL 1641115 (Ky. Apr. 22, 2010) (unreported);
50. Smith v. Garber, 2010 WL 2470839 (Ky. June 17, 2010)
51. (unreported); T. E. v. T. L. W., 2010 WL 985366 (Ky. Ct. App. Mar. 19, 2010) (unreported);
52. Draper v. Heacock, 2011 WL 181355 (Ky. Ct. App. Jan. 21, 2011).
53. Tannehill v. Tannehill, 261 So. 2d 619, 621 (La. 1972).
54. See, e.g., Levy v. Louisiana, 391 U. S. 68 (1968) (declaring a Louisiana statute unconstitutional that distinguished between "legitimate" and "illegitimate" children for purposes of inheritance in wrongful death action involving mother's death);
55. Smith v. Gordon, 430 U. S. 762 (1976) (declaring Illinois statute unconstitutional that drew a similar distinction with respect to paternal inheritance).
56. Warren v. Richard, 296 So. 2d 813 (La. 1974).
57. Smith v. Cole, 553 So. 2d 847, 855 (La. 1989).
58. W. R. M. v. H. C. V. 951 So. 2d 172, 175 (La. 2007) (a biological father who cannot meet the best-interest-of-the-child standard retains his obligation of support, but cannot claim parental rights such as visitation
59. citing LA. CIV. CODE arts. 187, 189 (2010).
60. See Rachel L. Kovach, Comment, Sorry Daddy-Your Time Is Up: Rebutting the Presumption of Paternity in Louisiana, 56 LOY. L. REV. 651 (2010).
61. For a more complete explanation of California parentage law, see June Carbone, From Partners to Parents Revisited: How Will Ideas of Partnership Include the Emerging Definition of California Parenthood?, 7 WHITTIER J. CHILD & FAM. ADVOC. 3 (2007) (hereinafter Partners).
62. H. S. v. Superior Court, 108 Cal. Rptr. 3d 723, 728 (Ct. App. 2010).
63. Id. (emphasis added). See also Brian C. v. Ginger K., 92 Cal. Rptr. 2d 294, 311-12 (Ct. App. 2000) (upholding the right of the biological father who had lived with the mother and child and established a parental relationship with the child to rebut the marital presumption).
64. H. S., 108 Cal. Rptr. 3d at 727.
65. Gabriel P. v. Suedi D., 46 Cal. Rptr. 3d 437, 447-48 (Ct. App. 2006).
66. Id. The court cited CAL. FAM. CODE §§ 7611 (c) and (d) as possible grounds to recognize Anthony as a presumed father. Sec. 7611 (c) recognizes putative fathers who have married the mother and acknowledged the child and (d) recognizes men who have received the child into their homes and openly held out the child as their "natural child."
67. Id. See Carbone, Partners, supra note 45, at 10-13.
68. See, e.g., Hardy v. Hardy, 2011 WL 661692 (Ark. Feb. 24, 2011) (applying res judicata where the trial court in the initial divorce proceeding refused to permit paternity tests because they were not in the child's best interest);
69. Chanthoan v. David F., 907 N. Y. S.2d 436 (Fam. Ct. 2009) (allowing blood tests to establish paternity of unmarried father where court concludes it would not disrupt marital relationship and husband and wife both approved of them);
70. Kamp v. Dep't of Human Servs., 980 A.2d 448 (Md. Ct. Spec. App. 2009) (holding that trial court should apply a threshold best-interests determination before ordering blood tests that would rebut marital presumption);
71. Williamson v. Williamson, 690 S. E.2d 257 (Ga. Ct. App. 2010) (applying best-interest-of-the child standard).
72. See also Doe v. Roe (In re Doe), 127 P.3d 105 (Idaho 2005) (recognizing husband over biological father as child's legal father at divorce and observing that "[m]ere biology does not create a father with legal rights and responsibilities to a minor child."
73. Indeed, use of a best-interest test to determine whether to conduct paternity tests is different from a best-interest test to determine visitation of a legal parent. In the former, the court treats the established parent as a constitutionally rights-bearing legal parent, and considers the child's interest before allowing the inquiry into paternity to proceed. In the latter cases, the rights bearer is the established biological father, and most courts presume that it is in the child's interest to have contact with him. States can nonetheless deal with the nuances of these relationships in different ways. See, e.g., Callender v. Skiles, 623 N. W.2d 852, 855 (Iowa 2001) (discussing meaning of best-interest standard).
74. See Ruth Padawer, Who Knew I Was Not the Father?, N. Y. TIMES MAG., NOV. 17, 2009, available at http://www.nytimes.com/2009/l l/22/magazine/22Paternity- t.html (emphasizing the intertwined nature of the lives of the people involved in paternity disputes).
75. For an account of these changes, see JUNE CARBONE, FROM PARTNERS TO PARENTS: THE SECOND REVOLUTION IN FAMILY LAW, ch. 18, 19 (2000).
76. June Carbone & Naomi Cahn, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 WM. & MARY BILL RTS. J. 1011 (2003).
77. See, e.g., Hardy v. Hardy, 2011 WL 661692 (Ark. Feb. 24, 2011) (trial court denied paternity testing on a best-interest basis where boy was eight at the time of the divorce and the husband was the only father the child had known).
78. See, e.g., Wiese v. Wiese, 699 P.2d 700, 701 (Utah 1985).
79. Some states, however, distinguish between parenthood by estoppel, which estops a legal parent from denying the other parent's visitation or custody rights, and equitable estoppel, which estops a person who had held himself out as a parent from denying the obligation to pay child support. See Janice M. v. Margaret K., 948 A.2d 73, n. 14 (Md. 2008) (distinguishing between the two concepts and concluding that while the two concepts are related, "one does not follow necessarily from, or equate to, the other").
80. Clevenger v. Clevenger, 11 Cal. Rptr. 707, 714 (Ct. App. 1961);
81. see also In re Marriage of Pedregon, 132 Cal. Rptr. 861 (Ct. App. 2003).
82. K. B. v. D. B., 639 N. E.2d 725, 728 (Mass. App. Ct. 1994).
83. A critical part of the marital presumption has been the evidentiary rules precluding testimony about the husband's lack of sexual access to the wife. Yet, Massachusetts has permitted such testimony to be used to contest paternity since at least 1914. See Commonwealth v. Rosenblatt, 219 Mass. 197 (1914).
84. K. B., 639 N. E.2d 725.
85. Symonds v. Symonds, 432 N. E.2d 700, 703 (Mass. 1982);
86. see also 583 N. E.2d 840, 843 (Mass. 1992) ('The obligation to support a child primarily rests with the natural parents, and one who undertakes that task without any duty to do so generally should not be punished if he or she should abandon it.").
87. K. B., 639 N. E.2d 725.
88. See also B. E. B. v. R. L. B, 979 P.2d 514, 518 (Alaska 1999)
89. citing Knill v. Knill, 510 A.2d 546 (Md. 1986).
90. In Miller v. Miller, 478 A.2d 351, 359 (N. J. 1984), the New Jersey Supreme Court explained: [T]he natural parent should always be considered the primary recourse for child support because society and its current laws assume that the natural parent will support his or her child. It is only when a stepparent by his or her conduct actively interferes with the children's support from their natural parent that he or she may be equitably estopped from denying his or her duty to support the children. Id.
91. Warfield v. Warfield, 815 A.2d 1073, 1077 (Pa. Super. Ct. 2003).
92. Compare Duran v. Duran, 820 A.2d 1279 (Pa. Super. Ct. 2003) (husband not liable for child support where he removed himself "as gently as possible" from the child's life)
93. with J. C. v. J. S., 826 A.2d 1 (Pa. Super. Ct. 2003) (husband who was "justly proud" of the fact that he continued to treat child as his son in every way held liable for support).
94. See Vargo v. Schwartz, 940 A.2d 459, 467 nn. 3, 6 (Pa. Super. Ct. 2007), for criticism of Pennsylvania's refusal to permit the introduction of paternity tests in cases involving application of the marital presumption or estoppel.
95. Wiese v. Wiese, 699 P.2d 700, 701 (Utah 1985).
96. S. R. D. v. T. L. B., 174 S. W.3d 502, 510 (Ky. Ct. App. 2005).
97. In a later case, however, a Kentucky appellate court refused to apply estoppel where the effect would be to establish a stepparent as a father. In J. R. A. v. G. DA, 314 S. W.3d 764 (Ky. Ct. App. 2010), the mother's second husband signed an affidavit asserting that he was the child's biological father after he married the mother when the child was three. When the couple divorced, the second husband denied paternity. The court refused to hold the second husband responsible for support, emphasizing that the child was not born into the marriage, the child knew that the husband was not the biological father, and estoppel should not be used to turn every male individual who acts as a father to a child into the child's legal father. Id. at 767.
98. Id. Courts have also used the doctrines of res judicata and collateral estoppel to prevent relitigation of custody issues where a man had an opportunity to challenge paternity and failed to do so. See, e.g., Godsoe v. Godsoe, 995 A.2d 232 (Me. 2010).
99. See, e.g., Martin v. Pierce, 257 S. W.3d 82 (Ark. 2007);
100. Hardy v. Hardy, 2011 WL 661692 (Ark. Feb. 24, 2011) (holding that res judicata applied where the trial court in the initial divorce proceeding refused to permit paternity tests because they were not in the child's best interest and the weight of the evidence favored a finding of paternity);
101. Godsoe v. Godsoe, 995 A.2d 232 (Me. 2010) (where husband did not contest paternity at divorce, res judicata barred later action);
102. Nancy Darlene M. v. James Lee M., Jr., 400 S. E.2d 882, 885 (W. Va. 1990)
103. amended by 464 S. E.2d 79 (W. Va. 1995) (applying doctrine of res judicata to husband who discovered that he was not the biological father after divorce decree treating the children as children of the marriage had become final);
104. In re Marriage/Children of Betty L. W. v. William E. W., 569 S. E.2d 77, 86 (W. Va. 2002).
105. See also Maegan Padgett, The Plight of a Putative Father: Public Policy v. Paternity Fraud, 107 W. VA. L. REV. 867, 889 (2005);
106. People v. R. L. C., 47 P.3d 327, 333 (Colo. 2002) (applying same principles to case of unmarried partners and holding that "the child's interests must also be considered when deciding whether to permit a legal father to reopen a judgment of paternity. We are not persuaded that it is in the best interests of a child to permit an existing parent-child relationship to be subjected to endless question and challenge.").
107. Parker v. Parker, 950 So. 2d 388 (Fla. 2007);
108. see also Walker v. Walker, 280 S. W.3d 634 (Mo. Ct. App. 2009) (refusing to grant husband post-dissolution relief in the absence of extrinsic fraud).
109. Masters v. Worsley, 777 P.2d 499 (Utah 1989).
110. For discussions of how paternity law reforms were driven by welfare principles, see Jane C. Murphy, Legal linages of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV. 325, 346 (2005).
111. For discussion of the implications, see Weaver v. Solone, 2006 WL 2730425 (Conn. Super. Ct. Sept. 8, 2006) (documenting impact on poor men);
112. M. A. S. v. Miss. Dep't of Human Servs., 842 So. 2d 527 (Miss. 2003) (allowing DNA evidence to be admitted nine years after paternity acknowledgment by nonbiological father because it would be "profoundly unjust" to require him to continue to make payments).
113. Compare Kevin Q. v. Lauren W., 95 Cal. Rptr. 3d 477 (Ct. App. 2009)
114. (voluntary acknowledgment of paternity has the force of a judgment under California law) with In the Matter of Gendron, 950 A.2d 151 (N. H. 2008)
115. with L. L. M. v. J. M. T., 964 So. 2d 66 (Ala. Civ. App. 2007) (acknowledgment does not have the force of a judgment in Alabama).
116. See also Dep't of Rev., Child Support Enforcement Div. v. Button, 7 P.3d 74 (Alaska 2000) (paternity acknowledgement creates presumption of paternity, but does not establish support requirement without court order; biological father's duty of support, however, arises at the birth of his child).
117. These cases, however, are more likely to involve poorer parents who sign the forms under pressure from welfare authorities and may not be fully aware of their ability to obtain testing. One study showed that where testing is requested the results excluded 28% to 30% of the men as possible fathers. See Weaver, 2006 WL 2730425 (citations omitted).
118. See, e.g., ARIZ. REV. STAT. § 25-812 (E) § 25-812 (E) § 25-812 (E) § 25-812 (E) (2011).
119. Andrew R. v. Ariz. Dep't of Econ. Sec, 224 P.3d 950 (Ariz. Ct. App. 2010) (mother could not challenge paternity after six-month period provided by the statute had lapsed, but reserved judgment on whether biological father who had not participated in prior actions could do so).
120. Compare People v. Robert M. (In re M. M.), 928 N. E.2d 1281 (111. App. Ct. 2010) (child, unlike the adults, could not be estopped from contesting voluntary acknowledgement of paternity)
121. with In re Parentage of G. E. M., 890 N. E.2d 944 (111. App. Ct. 2008) (mother acting alone could not rescind voluntary acknowledgment in order to seek support from another man).
122. Wesley v. Hall, 289 S. W.3d 143 (Ark. Ct. App. 2008).
123. See also J. M. v. M. A., 928 N. E.2d 230 (Ind. 2010) (challenges to voluntary acknowledgments permitted where putative father testified that he did not know that mother had slept with other men);
124. Dep't of Human Servs. v. Chisum, 85 P.3d 860, 863 (Okla. Civ. App. 2004) (material mistake of fact established where putative father did not have reason to question paternity until after he signed the paternity acknowledgment). The court observed in Chisum that a putative father could not be expected to insist on a paternity test before signing such an acknowledgment because it would "inject an element of hostility into the oftentimes already volatile emotional relationships" arising out of nonmarital births. The court added that "[n]ot only is such testing expensive, but the putative father's request of such tests may be perceived as an attack on the mother's veracity and an attempt to shirk responsibility for the child." Id. at 862, n. 2.
125. Martin v. Pierce, 257 S. W.3d 82 (Ark. 2007) (citations omitted).
126. *1 (not reported in S. W.3d).
127. See State ex rel. Hickman v. Dodd, 2008 WL 4963508 (Tenn. Ct. App. Nov. 21, 2008)
128. citing Tenn. Term. R. Civ. P. 9.02. The five-year period is a particularly long one. Compare Arizona statutes, supra, note 84.
129. See also In the Interest of J. A., 2010 Tex. App. LEXIS 6049 (2010)
130. and TEX. FAM. CODE Ann. § 160. 302 (four-year period for challenges based on fraud).
131. HARRIS, ET AL., supra note 20, at 623, n. 77 (summarizing cases). See, e.g., Eubanks v. Moss, 2010 WL 2196559 (Conn. Super. Ct. Mar. 5, 2010) (using best-interest test to refuse to open paternity determination after child reached the age of majority);
132. State ex rel. Sec'y of Soc. & Rehab. Servs. v. Kimbrel, 231 P.3d 576 (Kan. Ct. App. 2010) (concluding that a voluntary acknowledgment established a rebuttable presumption of paternity that could be rebutted after the statutory time limits if in the child's best interest).
133. Shondel J. v. Mark D., 853 N. E.2d 610, 620 (N. Y. 2006).
134. Weaver v. Solone, 2006 WL 2730425 (Conn. Super. Ct. Sept. 8, 2006). The court concluded: [T]his Court believes the proper analysis considers (1) the genetic information available and (2) the past relationship of the involuntarily adjudicated father and child and (3) the child's future interests in knowing her parental biology, for example medical need to know parentage; ability to identify and develop a relationship with biologic parent, future legal rights such as inheritance, life insurance benefits, social security benefits, possible sibling relationships and (4) the child's ability to receive emotional and financial support from her biologic father and (5) any potential harm that the child may be caused to suffer by disturbing the paternity judgment, including loss of parental relationship, and loss of financial support.
135. Juanita-A. v. Kenneth Mark N., 930 N. E.2d 214, 216 (N. Y. 2010). New York courts have also used estoppel to prevent a biological father from asserting paternity rights when it would be detrimental to the child's interests to disrupt the child's close relationship with another father figure.
136. See, e.g., B. A. v. Sharon N., 894 N. Y. S.2d 753 (App. Div. 2010).
137. See also In re Parentage of G. E. M., 890 N. E.2d 944 (111. App. Ct. 2008) (finding that mother acting alone could not rescind voluntary acknowledgment in order to seek support from another man).
138. Glover v. Severino, 946 A.2d 710 (Pa. Super. Ct. 2008).
139. But see Ellison v. Lopez, 959 A.2d 395 (Pa. Super. Ct. 2008) (estopping putative father who knew mother had slept with other men and who had a close relationship with the child).
140. 185 P.3d 834 (Haw. Ct. App. 2008).
141. Id. at 848-49. The Hawaii court did not conclude, however, that Egan became a parent by estoppel. Instead, it found that both marriage and the act of the placing Egan's name on the birth certificate created a presumption of paternity and that Gina was estopped from rebutting the presumption in light of her own actions and consideration of the child's best interest. Id. at 843 ("The family court did not use estoppel to bestow parental rights and duties on a legal stranger to Child One. Rather, the family court ruled that Gina was estopped from challenging Egan's legal status as Child One's presumed natural father."). See also Pettinato v. Pettinato, 582 A.2d 909 (R. I. 1990);
142. Hinshaw v. Hinshaw, 237 S. W.3d 170, 171 (Ky. 2007) ("This Court holds today that the common law doctrine of equitable estoppel is applicable to custody cases.").
143. See In re Marriage of K. E. V., 883 P.2d 1246, 1252-53 (Mt. 1994) (equitable estoppel barred mother from rebutting presumed father's paternity in a divorce proceeding, where mother told presumed father he was the biological father, and presumed father detrimentally relied on that misrepresentation);
144. Koos v. Willson, 2005 Iowa-App. LEXIS 243 (Iowa Ct. App. Mar. 31, 2005) (preventing mother and biological father from disestablishing legal father where Koos had signed a voluntary acknowledgment of paternity and mother claimed that she and the biological father didn't know that Koons was not the biological father until five years later).
145. In re Gendron, 950 A.2d 151 (N. H. 2008).
146. Rubano v. Di Cenzo, 759 A.2d 959, 968 (R. I. 2000). For a decision refusing to apply the estoppel principle on similar facts
147. see White v. White, 293 S. W.3d 1 (Mo. Ct. App. 2009).
148. County of San Diego v. Arzaga, 62 Cal. Rptr. 3d 329 (Ct. App. 2007).
149. See, e.g., Janice M. v. Margaret K., 948 A.2d 73 (Md. 2008);
150. White v. White, 293 S. W.3d 1 (Mo. Ct. App. 2009).
151. Barber v. Barber, 77 P.3d 576 (Okla. 2003).
152. Id. at 580, citing Troxel v. Granville, 530 U. S. 57 (2000).
153. See also Dep't of Human Servs. v. Chisum, 85 P.3d 860, 863 (Okla. Civ. App. 2004) (equitable estoppel and similar equitable theories are not applicable in paternity proceedings to establish legal paternity in a man who is not the child's biological father).
154. For more discussion of the issue, see Susan Frelich Appleton, Parents by the Numbers, 37 HOFSTRA L. REV. 11 (2008);
155. Nancy E. Dowd, Multiple Parents/Multiple Fathers, 9 J. L. & FAM. STUD. 231 (2007);
156. Melanie B. Jacobs, Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J. L. & FAM. STUD. 209 (2007).
157. See also C. L. v. Y. B., 938 N. E.2d 1221, 1225 (2010) (finding that although putative father had waived ability to contest judgment establishing paternity, establishing paternity in another man through paternity tests automatically disestablished his parental standing).
158. Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. Ct. 2007).
159. J. R. v. L. R., 902 A.2d 261 (N. J. Super. Ct. App. Div. 2006).
160. See Carbone & Cahn, Which Ties Bind, supra note 58.