Thomas S. v. Robin Y.

Rosenberger, J. P., and Ellerin, J., dissent in a memorandum by Ellerin, J.

The question before us on this appeal is whether petitioner must be granted an order of filiation, pursuant to Family Court Act § 542, establishing his paternity of the child borne by respondent in November, 1981 as a result of having been artificially inseminated with petitioner’s sperm or whether the doctrine of equitable estoppel may be applied to preclude the issuance of such order. The complexity of the human relationships that permeate this case and the contemporary reality of millions of households that maintain alternative family lifestyles* strongly militate against the rigid, abstract application of legal principles, not designed for situations such as this, in a way that will grievously impact upon an innocent child, now 12 years of age. This case also demonstrates, as do most emotionally charged situations, the inadequacy of current law and litigation as instruments capable of satisfactorily accommodating the competing desires and interests of each of the parties involved. Since, however, I believe that the overriding factor which must guide us is the best interests of this child, I dissent and would affirm the trial court’s sensitive and well founded decision which denied a declaration of paternity to petitioner sperm donor on the basis of equitable estoppel.

The facts as found by the trial court are as follows. The child Ry was conceived by respondent Robin Y. using sperm donated by appellant Thomas S., a gay man, while Robin was living in a stable life partnership relationship with another lesbian mother, Sandra R., and Sandra’s then infant child Cade. At the time of appellant’s providing his sperm, it was agreed, albeit not in writing, that he would have no parental rights or obligations and that the child would be brought up with Cade in a 2 parent household with 2 mothers. Appellant *308further agreed that he would make himself known to the child if the child wished to know the identity of her biological progenitor.

Notwithstanding the agreement, it is the manner in which the parties acted during the period from the child’s birth up to the time of the commencement of this proceeding that is of critical significance. For the first 3 years of Ry’s life there was virtually no contact with appellant. He was neither present at, nor involved with any arrangements for or costs of, her birth. His name was not on her birth certificate, he was not in any way involved in her care or support nor did he indicate the slightest desire to learn of her progress or condition even though for the first 8 months of her life Ry and her family resided in San Francisco where appellant lived.

It was only in 1985 when Cade, then almost 5 years old, began to ask about her biological origins, that contact was made with both Cade’s sperm donor and with appellant, both of whom lived in California. At that time Ry was almost SVi years old. In the ensuing 6 years there were periodic contacts between appellant and both children, usually with both mothers present and always at the complete discretion of the mothers.

The record clearly establishes that for Ry’s first 9 Vi years of life the appellant at no time sought to establish a true parental relationship with her either by way of seeking to legally establish his paternity and assuming the responsibilities and obligations which that status entailed or by any involvement in her upbringing or schooling or by attempting to provide any support for her. He was not there when she cut her baby teeth, started to walk, was sick or in need of parental comfort or guidance, nor did he seek to involve himself in the everyday decisions which are peculiarly the domain of parents—-decisions as to what schools she should attend, what camps, what doctors should be consulted, the extent of her after school and social activities, the need for tutors and the like. Perhaps Ry herself best stated it when she said that to her a parent is a person who a child depends on to care for her needs.

The net of petitioner’s relationship with Ry during the 6 years that he occasionally saw her until she was almost 10 years old was that of a close family friend or fond surrogate uncle who, while acknowledging that he was her biological sperm donor, fully recognized that her family unit consisted of her two mothers and her sister Cade and that he was not a *309family member of that unit. Throughout this period he fully acquiesced in the mothers’ arrangement for meetings—i.e., to include all 4 members of the R.-Y. family and with Cade to be treated by him in precisely the same way as Ry. While respondent Robin Y. was always agreeable to continuing periodic meetings and contacts with appellant on the same basis, it was appellant who summarily sought to alter this modus operandi of the preceding 6 years. He asked that the children visit him by themselves, without the other members of those whom he had always recognized as her family, so that he could introduce Ry to his own biological family, including his parents and siblings. He made clear that he would not feel comfortable introducing the mothers to his family. After respondent refused to accede to this attempt to markedly alter the prior course of the relationship between appellant and Ry’s family, fueled by respondent’s apprehension of future legal proceedings seeking to undermine that family relationship, appellant filed the instant petition for filiation.

The trial court, sensitive to the issues involved, appointed a law guardian for the child and obtained the agreement of all parties to submit the child to a psychiatric evaluation. Both the law guardian and the psychiatrist strongly recommended against the declaration of paternity and further recommended that there be no court-ordered visitation. Their intensive examination of Ry’s progress while raised with the family unit that she has known since birth showed that she, and Cade, in addition to having a very close and warm sisterly relationship and a warm and loving relationship with both their mothers have also functioned well in the private school which they attend and that they have strong peer relationships. Ry is a well adjusted child, who, despite experiencing some external incidents of intolerance and insensitivity to her family lifestyle, views that family as a warm, loving, supportive environment. Most significantly, Ry views this proceeding as a threat to her sense of family security. She is angry at petitioner and feels betrayed by him because she and her family had counted on him as a supporter of their unconventional family unit. The thought of visiting appellant, and her deep-seated fear that he might seek custody of her, have caused Ry anxiety and nightmares and the psychiatrist opined that forced visitation with appellant would exacerbate that anxiety and have untoward consequences. The law guardian in a lengthy and well-documented brief details the specifics of the relationships involved and the completely non-parental role occupied by appellant until the instant proceeding was commenced when *310Ry was almost 10 years old. Both the law guardian and the court-appointed psychiatrist make clear that the best interests of Ry, now 12 years old, will be served by an affirmance of the denial of filiation, which will also eliminate Ry’s custody concerns.

At the outset, it must be emphasized that this proceeding was brought for the purpose of establishing, in the first instance, petitioner’s parental status. While, concededly, petitioner provided the sperm for the artificial insemination that resulted in Ry’s birth, petitioner at no time, for the almost 10 years prior to the commencement of this proceeding, established any paternal rights either by way of a legal proceeding or by way of fulfilling any of the duties and responsibilities incidental to parenthood. In that setting, the majority’s characterization of the denial of the petition as akin to the "termination of [petitioner’s] parental rights” is both puzzling and inaccurate. Until it can be established that petitioner has some parental rights, the very relief sought in this proceeding, the question of any "termination” of petitioner’s rights never arises and the majority’s recourse to Social Services Law § 384-b, governing termination of parental rights, is misplaced.

Nor, it should be made clear, is this case in any wise a referendum on the comparative parenting abilities of lesbian mothers versus gay fathers, a gratuitous rhetorical inquiry posed by the majority. That petitioner is a gay man is wholly irrelevant to the question of whether his conduct for a period of almost 10 years during which he acquiesced in, and indeed fostered, Ry’s belief that her family unit consisted of her 2 mothers and her sister Cade and that he did not occupy, nor seek to exercise, any parental or family role, should preclude his present attempt to establish parental status. It is the import of appellant’s conduct and not his sexual orientation that is controlling. An identical standard would apply if any or all of the parties involved in this case were heterosexual.

The threshold issue that must first be determined is what rights, if any, arise from the fact that petitioner was the sperm donor and paternal biological progenitor of the child Ry. The Court of Appeals has made clear that absent " 'a full commitment to the responsibilities of parenthood’ ” the mere existence of a biological link does not merit constitutional protection (Matter of Robert O. v Russell K., 80 NY2d 254, 262, quoting Lehr v Robertson, 463 US 248, 261). Thus, an unwed biological father does not automatically have parental rights which must be recognized by the State independent of the child’s best interests, since such rights come into existence *311only if the father has sufficiently grasped the opportunity to "promptly manifest * * * his willingness to take on parental responsibilities” and it is only when "the opportunity, of limited duration, to manifest a willingness to be a parent” is grasped that an interest arises worthy of protection as a matter of due process (Matter of Robert O. v Russell K., supra, at 266; see also, Quilloin v Walcott, 434 US 246; Caban v Mohammed, 441 US 380; Lehr v Robertson, 463 US 248, supra).

While providing support for the child, and the child’s education, would appear to be a minimal requirement for the manifestation of parenthood (see, Family Ct Act § 513), the criteria which are particularly relevant in determining whether an unwed biological father has sufficiently undertaken his parental responsibilities to give him a protected parental interest may be garnered by reference to Domestic Relations Law § 111 which governs adoptions and delineates the various criteria which must be met before an unwed father has any protected right vis-á-vis the child. That statute provides that when the child is more than six months old, the father has a protected parental right to the extent of requiring his consent to the child’s adoption, only if he has, "maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father’s means, and either (ii) the father’s visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father’s regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.” (Domestic Relations Law § 111 [1] [d].)

In this case there is no question that petitioner has never sought to contribute to the ongoing support of the child, or to see to her educational or other needs despite the fact that he is a professional of substantial means. On the contrary, all of the child’s economic and educational needs have been provided for through her mothers and she has enjoyed a comfortable standard of living. Nor, after not seeing the child at all for the first 3 years of her life, has petitioner ever sought to visit the child on anything close to a monthly basis. His failure to do so cannot be attributed to respondent since, until *312very recently, the pattern of occasional visits was one with which he was in full agreement. Whether viewed within the framework of the statutory criteria or the common understanding of what parenthood entails vis-á-vis the multiple daily facets of a child’s life, petitioner’s conduct until the commencement of this proceeding fell far short of manifesting the willingness to take on the parental responsibilities necessary to invest him with any constitutionally recognized parental "rights” which could be terminated subject to the provisions of Social Services Law § 384-b.

Petitioner argues that, dehors any constitutional considerations, Family Court Act § 542 requires that an order of filiation be granted because he is unquestionably the child’s biological progenitor. Irrespective of the seemingly mandatory language of Family Court Act § 542, biological fatherhood does not create an absolute right to an order of filiation, and, indeed, the courts of this State have frequently applied the doctrine of equitable estoppel to forestall the entry of such an order regardless of biological relation (see, Matter of Sharon GG. v Duane HH., 95 AD2d 466, 467-468, affd 63 NY2d 859; Terrence M. v Gale C., 193 AD2d 437, lv denied 82 NY2d 661; Matter of Ettore I. v Angela D., 127 AD2d 6).

An equitable estoppel will be applied in the interest of fairness where the misleading words or conduct of a party induce justifiable reliance by another to his or her substantial detriment, and may include a situation where the failure of a party to promptly assert a right creates circumstances making it inequitable to permit the right to be exercised after considerable time has elapsed (Matter of Ettore I. v Angela D., supra, at 12, citing Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184; see also, 57 NY Jur 2d, Estoppel, Ratification, and Waiver, §§ 13, 15, 27).

Appropriate circumstances for application of an estoppel in a paternity proceeding have been found in a wide variety of situations. For example, in Matter of Ettore I. v Angela D. (supra), the petitioner was estopped from asserting paternity where he had taken no action for 3 years and both the child and the mother’s husband had regarded the child as the husband’s own and had formed a parent-child relationship.

In Terrence M. v Gale C. (supra), petitioner was estopped from attempting to establish his paternity where he had failed to support or attempt to establish any relationship with the child for almost the entire period of the child’s minority. In that case, the person whom the child had previously thought *313of as her father had never been married to her mother and was, at the time of the proceeding, deceased.

Equitable estoppel has also been invoked to prevent a mother from seeking to have her husband, who had always performed the role of and assumed the responsibilities of a father, be replaced by another man who was a stranger to the child (Matter of Sharon GG. v Duane HH., supra; Michel DeL. v Martha P., 173 AD2d 308) and to prevent men who had acknowledged their paternity and acted as fathers from challenging that status in order to be relieved of support obligations (see, Matter of Barbara A. M. v Gerard J. M., 178 AD2d 412; Vito L. v Filomena L., 172 AD2d 648).

This leads to the issue of whether an estoppel should be applied under the facts of this case. While frequently paternity cases which have involved the application of equitable estoppel have concerned the preservation of the legitimacy of the child in its legal definition, no authority is cited to support the majority’s conclusion that the preservation of legitimacy in its legal sense is a sine qua non for the imposition of equitable estoppel. On the contrary, the paramount purpose of the equitable estoppel doctrine is to promote fairness and justice, and in considering whether it should be applied in a paternity case the overriding consideration is whether imposition of the estoppel will serve the best interests of the child (see, i.e., Matter of Ettore I. v Angela D., supra). It is also significant that the appropriate emphasis in a case seeking to establish paternity must be upon the welfare of the child and that the primary purpose of establishing paternity is to insure that adequate provision will be made for the child’s needs in accordance with the means of the parents (Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5). Thus, both in considering whether to grant a filiation order and, alternatively, in considering whether to apply equitable estoppel to deny such an order, the predominating concern must be the welfare of the child. This means that even if equitable estoppel is applied to forestall a purported father’s petition for a filiation order, that determination would not subsequently preclude the commencement of a paternity proceeding by any other party who is entitled to originate such proceeding pursuant to Family Court Act § 522, including the mother, the child herself or a public welfare official. Thus, while one party may be estopped from asserting paternity, should the situation change, and a declaration of paternity be found to be in the best interests of the child, there would be nothing to prevent its entry.

If the child’s best interests are to be the touchstone of the *314analysis, the attempts by both parties to argue the equities of their own respective personal positions are not germane. It is neither petitioner’s nor respondent’s feelings of aggrievement that are the determinative consideration, although one may sympathize and understand those feelings. Rather, it is the impact which petitioner’s past assurances and representations to Ry during her first 9Vi years of life—as to who her family were, how it functioned and his non-family status—have had upon her stability and security and the consequences which would stem from permitting a dramatic abrogation of those representations by giving petitioner family status with all that it entails. While the child has always known that petitioner is her biological progenitor, it had consistently been demonstrated by petitioner himself that this factor did not confer upon him any authority or power over her life, that it did not mean that Sandra R. was less her mother than Robin Y., and that it did not mean that her sister was not her full sister. To now grant him the standing to claim the very considerable authority and power held by a parent, against her wishes, would change her life in drastic ways. For this reason, I believe that the elements of misrepresentation, reliance and detriment have clearly been established and that the evidence demonstrates that an order of filiation is not in this child’s best interests. Under these circumstances, the doctrine should be applied.

The evidence overwhelmingly supports this conclusion. The psychiatric testimony clearly demonstrated that an order of filiation would have an adverse effect. Not only does the child view the prospect of such an order as an attack on her family, but she affirmatively fears the fact that parental authority over her life may rest in the hands of someone whom she had never viewed as a parental figure and whose wishes are diametrically opposed to those of the two people she does view as her parents. Furthermore, it is important to point out that the court-ordered psychiatrist clearly testified that he did not believe that the child’s fears were the result of "brain-washing”, but were consistent with her long held commitment to her family. This was among the reasons he recommended against orders of filiation and visitation.

Moreover, petitioner’s past actions do not support a finding that his application for paternity is part of a longstanding commitment to his role as a father that might tend to override concerns that his potential participation in the child’s life would be disruptive. While petitioner’s initial oral agreement to forego the initiation of any contact with the child is clearly *315not binding, it is certainly evidence that petitioner’s commitment to the child has not been consistent. Additionally, petitioner’s willingness to have virtually no contact with the child until the age of 3 and, after that, to seek no contact beyond that which was suggested by others also bespeaks a less than intense interest and strongly supports the conclusion that the child herself has consistently been led to believe by petitioner that he does not play a parental role in her life. For the 6 years during which he and the child had contact, petitioner never sought more visits than those arranged by respondent and Sandra R., which were frequently during vacation periods and shared with a number of other friends. These visits have not totalled more than 25 over the course of 6 years. Nor did petitioner, either during visits or at any other time, seek to participate in any day-to-day care of the child or in any of the crucial decisions involving the child’s life, such as her schooling, her religious upbringing, her medical care. Another factor for consideration must be petitioner’s failure over the course of those years to attempt to provide any financial support for the child or to provide for her future. While this child is clearly well cared for without petitioner’s financial participation, it would nevertheless lend support to petitioner’s claim that his role in the child’s life will be a positive one if he had ever, prior to the initiation of this proceeding, considered it a priority to at least attempt to confer upon her the additional benefits which his financial contributions could have provided.

Also significant is the import of the incident which led to the rift which ultimately led to the instant litigation, i.e., petitioner’s insistence on bringing the child and her sister to visit his parents and siblings without respondent and Sandra R., which dramatically demonstrated to the child that petitioner is no longer supportive of her family unit and seeks to abrogate the family setting in which she has been nurtured since birth. Such an assault upon the child’s feelings of security is particularly devastating to one on the threshold of adolescence.

Furthermore, and perhaps most important, a declaration of paternity in this case would be counter to this child’s interests because it clearly would be only the first step in ongoing litigation which will inevitably cause severe traumatic consequences to the child and her family. Indeed, the majority’s decision has already provided for further litigation in its remand for a decision on visitation. A declaration of paternity creates a platform for petitioner, as well as his parents and other members of his family, who will, by means of the order, *316become the child’s legal relations, to seek changes in visitation and, of course, to seek custody. Indeed, even were visitation never to be granted and further litigation never to succeed, the constant, frightening potential for it is a burden that this child, who is already aware that her family is vulnerable to attack on a number of fronts, should not have to bear. It is clear that this specific fear has already taken its toll. According to the psychiatric testimony, the child believes that the order of filiation would mean that "anytime [petitioner] didn’t like something he could sue”. In particular, the psychiatric testimony emphasized Ry’s haunting fear of the consequences should her birth mother die or become unable to care for her and the resulting ambiguous status of the woman whom she has consistently thought of as her second parent.

Finally, it should be noted that, contrary to respondent’s arguments, the fact that the child was conceived by artificial insemination is wholly irrelevant on the question of whether or not petitioner has acquired any parental rights. In this State, the only differentiation drawn between the familial status of a child conceived as a result of artificial insemination, as opposed to intercourse occurs when the child is born to a woman who makes a mutual decision with her husband to conceive a child in this fashion, which is memorialized in a written, signed statement and where the insemination is performed by a licensed physician who certifies that he has performed the procedure. In such a case, Domestic Relations Law §73 automatically bestows the parental rights of the biological father upon the mother’s husband, who is deemed the legal father for all purposes. That statute, of course, has no application to this case and the conclusion that petitioner has no protected parental rights is predicated upon his failure for almost 10 years to manifest his willingness to assume the responsibilities of parenthood or to be a parent irrespective of the manner of the child’s conception.

For all these reasons, I believe that the evidence overwhelmingly supports the Family Court’s decision that the entry of an order of filiation would not be in this child’s best interests and that there should, therefore, be an affirmance. [See, 157 Misc 2d 858.]

See, Matter of Alison D. v Virginia M. (77 NY2d 651, 657-658 [Kaye, J., dissenting]), and authorities therein cited.