estoppel of paternity?

[angeleyzad]

What is the name of your state? Maine

Okay, my sister and her ex have been divorced for not quite a year now. They have 2 children. The oldest, age 12, is not biological, the youngest, age 9 is. The ex was in the 12 year old's life since he was born, and he put himself forth as the father, to my nephew, and to every one else. When my nephew was born, the state did paternity testing, but the 3 possibilities came back negative. Noone is listed on his birth certificate.

When my sister and now ex got divorced, he stated to the judge that he was the father (not biological or natural, but legal father) of both children, which is listed that way in the order. Their papers are signed, sealed, and delivered.

My nephew has behavoral issues, he has turretts and ADHD, and can sometimes be very hard to handle. My ex BIL has denied that my nephew has these problems, which has made it very difficult for my sister to get him the help that he really needs. Ex BIL has now stated that he will have nothing to do with my nephew, and is trying to find some law or statute that will allow him to wipe his hands clean of any and all responsibility for my nephew. He has not seen him or talked to him in the past 4 months.

Once things calm down from the end of the school year, my sister is finally sitting down with my nephew and is going to tell him that her ex is not my nephew's real father, but in the eyes of the law, he is his legal father. I know that there has been precedent sent with estoppel of paternity, which states that since my ex BIL has put himself forth as the father, both publicly and privately for so long (12 years), that he will remain as the legal father. Is there any law, statute, or anything that he could use to rebutt this? I have not been able to find anything (just trying to help my sis out).

 

[moburkes]

What is the name of your state? Maine

Okay, my sister and her ex have been divorced for not quite a year now. They have 2 children. The oldest, age 12, is not biological, the youngest, age 9 is.

Do you mena to say that s/he is not biologically related to the ex?

The ex was in the 12 year old's life since he was born, and he put himself forth as the father, to my nephew, and to every one else. When my nephew was born, the state did paternity testing, but the 3 possibilities came back negative. Noone is listed on his birth certificate.

You know that you just set yourself up, right?

When my sister and now ex got divorced, he stated to the judge that he was the father (not biological or natural, but legal father) of both children, which is listed that way in the order. Their papers are signed, sealed, and delivered.

My nephew has behavoral issues, he has turretts and ADHD, and can sometimes be very hard to handle. My ex BIL has denied that my nephew has these problems, which has made it very difficult for my sister to get him the help that he really needs. Ex BIL has now stated that he will have nothing to do with my nephew, and is trying to find some law or statute that will allow him to wipe his hands clean of any and all responsibility for my nephew. He has not seen him or talked to him in the past 4 months.

Once things calm down from the end of the school year, my sister is finally sitting down with my nephew and is going to tell him that her ex is not my nephew's real father, but in the eyes of the law, he is his legal father. I know that there has been precedent sent with estoppel of paternity, which states that since my ex BIL has put himself forth as the father, both publicly and privately for so long (12 years), that he will remain as the legal father. Is there any law, statute, or anything that he could use to rebutt this? I have not been able to find anything (just trying to help my sis out).

The state did paternity testing on 3 men, for your nephew, even though your sister was married?

 

[angeleyzad]

to answer your questions...

My sister was unmarried, got pregnant, had my nephew, 3 men were tested through the state, all came back negative. She then got together with another man, who put himself forward as my nephew's father. This was done on his own accord, no one forced him to do this. He did not want my nephew to know that he was not his biological son. They had another child together, as well. So, for 12 years, this has been his decision. They got divorced last year, at which time he was still putting himself forth as my nephew's legal father. Their wording in their divorce judgement even states my sister and her ex as legal parents of the two named boys. If he was going to deny this, shouldn't there have been an appeal filed immediately, to remove that wording?

Everything was fine until my nephew started having more problems (sister's ex did not want my nephew on medication, even though his doctor's all stated that he needed it, so he never gave my nephew the meds). Now, he does not want to have anything to do with him (which I know, he cannot be forced to take his visitation time with him). He takes the younger, but not the older. He's filed for modification so that he will no longer be responsible for my nephew, my sister is fighing that on grounds of estoppel of paternity.

 

[angeleyzad]

You know that you just set yourself up, right?

I know, that's the truth, though. She had been set up with one man, who she did not know - that was the truth about it. It was something that happened at a very low point in her life.

People can comment all they want, but hey, that's life - sometimes you do something that you're not proud of, and well, you reap what you sew. She has done a wonderful job raising my nephew, despite his problems. At her ex's insistance, she did not tell my nephew about the paternity issue, he wanted to be his only father.

 

[stealth2]

you reap what you sew.

pssst - sow. It's a farming metaphor.

 

[angeleyzad]

pssst - sow. It's a farming metaphor.

oops, sorry...I was thinking of sew buttons....oh well, my bad. Thanks for the heads up?

Any thought on the situation, though? I know that you give some pretty good advise most of the time.

I'm just looking to see if there is any sort of statute or presedence that goes against estoppel of paternity.

 

[stealth2]

I have no idea, which is why I haven't addressed the situation.

 

[angeleyzad]

I have no idea, which is why I haven't addressed the situation.

Ah, Okay, thanks for the honesty - some people would just comment on the juicy details, liking all the drama.

Thanks!

 

[stealth2]

It was tempting.

 

[angeleyzad]

It was tempting.

I know - it's an awful situation, it seems we always have some type of drama in our family - between me and my sister, we both picked winners for husbands, and are now dealing with the reprocussions. I'm just glad that I have found someone now that is a stand-up guy.

 

[LdiJ]

One possible resource for information would be the Maine state government website. If case law is posted there you can search for cases regarding estoppel of paternity and see what legal arguments were used by both sides.

 

[rmet4nzkx]

If he is not the bio dad established by DNA or court action, Acknowledgement of Paternity or adoption, or born of the marriage, he is not the "legal" father, he is a de facto father and he does, in a divorce have the right to contest claims of paternity. Whether or not he would prevail in any petitions would then be up to the judge. Here is some general informaiton re estoppel and paternity issues, some of which may or not apply to the facts..
www.acf.hhs.gov/programs/cse/pubs/reports/litigation/ch04.html
...
Laches and Equitable Estoppel

Many courts find that the equitable doctrines of laches and paternity by estoppel bar presumptive fathers from denying paternity of children born during the marriage. For example, the Supreme Court of Connecticut found that a presumptive father was equitably estopped from disavowing paternity of his 12-year-old daughter, although the child was born before the marriage, W.v.W., 248 Conn. 487, 728 A.2d 1076 (1999). W. always knew that he was not the girl's biological father, but he held himself out as her father, treated her as his daughter, and provided psychological and financial support throughout her life. Furthermore, W. discouraged the mother from seeking genetic testing and pursuing child support from the child's biological father because W. did not want the biological father to play any role in the child's life. After the mother filed for divorce, W. initiated an action to disestablish his paternity of the child. The court found that the child would suffer an enormous emotional trauma if she learned that W. was no longer her father or was no longer responsible for her well-being. Furthermore, the court found that W.'s actions had prevented his daughter from forming a loving and nurturing relationship with her natural father and that W. had prevented the child from obtaining support from her biological father, who could not now be located.[16]

Equitable estoppel has three elements: (1) representation by word or conduct; (2) reasonable reliance on that representation; and (3) prejudice caused by reliance. In paternity disestablishment cases, the elements of representation and reasonable reliance are satisfied if:

1.

the husband represented directly or implicitly to the child that he was the father;
2.

the husband intended his representation to be accepted and acted on by the child;
3.

the child relied on the representation and treated the husband as a father and gave his love and affection to the husband; and
4.

the child was ignorant of the true facts.

Every element must be satisfied. Thus, the mother of an out-of-wedlock child was not estopped from pursuing a paternity/child support action against the child's biological father and seeking a declaration that her husband was not the father of the child, Rubright v. Arnold, 973 P.2d 580 (Alaska, 1999). Although the mother had not told her husband about the affair, and had placed his name on the child's birth certificate, the putative father could not show any detrimental reliance. Similarly, the Supreme Court of Iowa found that the child support agency was not estopped from bringing a paternity/child support action against a putative father, on behalf of a child, although the child was born during the mother's marriage to another man, was named after the husband, and both husband and wife had claimed that the husband was the child's father during divorce proceedings, State ex rel Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998). The court reasoned that since the claim belonged to the child, the child could not be estopped from asserting it by the parent's conduct.

Although a majority of courts find that the risk of emotional harm inherent in severing a child's relationship with a psychological parent satisfies the third prong (prejudice caused by reliance), at least one jurisdiction requires a showing of financial prejudice. (See, B.E.B. v. R.L.B., 979 P.2d 514 (Alaska, 1999)). In that case, the father was married to the mother when the child was born 8 years after the father had a vasectomy. Although he was not the girl's biological father, the husband treated her as his own, until the parties separated three years later. After the separation, the father distanced himself from this child, but she continued to think of him as her father. The divorce court found that the father was estopped from denying paternity, based on evidence of potential emotional harm to the child. The Supreme Court of Alaska reversed, and held that estoppel should only be applied where the petitioner could show financial harm.[17]

Laches is available as an equitable defense when a plaintiff unreasonably delays seeking relief and a defendant suffers prejudice because of the delay. Although the Doctrine of Laches has long been applied to paternity cases, the Supreme Court of Alaska recently found laches "an unsound basis for adjudicating legal paternity" where the presumed father was married to the mother at the time of the child's birth, but was not the child's biological father, T.P.D. v. A.C.D., 981 P.2d 116 (Alaska, 1999). In that case, the presumptive father and mother met when the mother was several months pregnant, but married before the child's birth. The husband was listed as the father on the child's birth certificate and held himself out as her father until the parties separated four years later. The trial court found that the father's disestablishment action was barred by the doctrine of laches because his long delay in seeking to disestablish paternity had prejudiced the ability of the mother and child support agency to find the child's biological father. The Supreme Court of Alaska reversed directing the trial court to enter an order of non-paternity and vacate the father's obligation to support the 9-year-old child.

Some jurisdictions permit a presumed father to seek disestablishment, if he acts promptly. The Supreme Court of Louisiana concluded that paternity of any child conceived during a marriage becomes irrefutable, unless it is timely challenged, even if husband and wife are living separate and apart at the time of conception, State v. Walker, 700 So.2d 496 (La. 1997). Mr. and Mrs. Walker began living apart two years before the child's birth, and allegedly never had sexual relations after the separation. They never divorced. The child's birth certificate lists Walker as his father. After the mother died, her sister gained custody of the 15-year-old boy and the State initiated a child support action against the husband. The Supreme Court of Louisiana found that Louisiana's paternity statute estopped the father from disavowing paternity more than 180 days after the child's birth.[18]
.....

 

[casa]

My sister was unmarried, got pregnant, had my nephew, 3 men were tested through the state, all came back negative. She then got together with another man, who put himself forward as my nephew's father. This was done on his own accord, no one forced him to do this. He did not want my nephew to know that he was not his biological son. They had another child together, as well. So, for 12 years, this has been his decision. They got divorced last year, at which time he was still putting himself forth as my nephew's legal father. Their wording in their divorce judgement even states my sister and her ex as legal parents of the two named boys. If he was going to deny this, shouldn't there have been an appeal filed immediately, to remove that wording?

Everything was fine until my nephew started having more problems (sister's ex did not want my nephew on medication, even though his doctor's all stated that he needed it, so he never gave my nephew the meds). Now, he does not want to have anything to do with him (which I know, he cannot be forced to take his visitation time with him). He takes the younger, but not the older. He's filed for modification so that he will no longer be responsible for my nephew, my sister is fighing that on grounds of estoppel of paternity.

I'm assuming the major issue is treatment for nephew's Diagnosis'...in which case, Mom can simply treat the child per the Dr's recommendation. I realize Dad isn't agreeing, but when it comes down to it (even if they have Joint Legal Custody)...Dad would have to file against Mom in court for contempt- and NO judge will cite her when she is following the advice/treatment plan from their physician.

If Dad isn't seeing son anymore~ I imagine Mom won't have to worry if Dad gives the child his medication (& at his age he can learn to be somewhat responsible for that himself).

Get the child in counseling...change is difficult for a child with ADHD (& moreso with co-existing disorder). The effects of the divorce could have been a catalyst~ And regardless this is a difficult time for kids <pre-teen/teen years> and it will only benefit nephew to have his medical treatment augmented with therapy.

 

[LdiJ]

The divorce was final a year ago and he DID assert legal paternity in the divorce.

 

[angeleyzad]

Thanks, rmet...

Thanks for that info, that is basically what I have found regarding estoppel of paternity. For all that I have found, there is nothing that he can use as far as case law or statutes goes, everything says that wehre he has done this for the past 12 years, he cannot all of a sudden stop now. Wether you call it defacto parent, or whatever. I used the term legal father, because that is what is listed in their court order. The court conciders him the legal father, even though there was no formal adoption, AOP, or anything. They did have my nephew's last name changed from my sister's maiden name to his last name, about 4 or so years ago. I don't know if that would help my sister, either. The whole arguement for my nephew was "my mom, my brother, and my father, all have the same last name...I want that last name, too." So they had gone in front of the judge, and legally changed his last name.