(dissenting).
[¶ 29.] How can we take the “child” out of child support? Today this Court penalizes a child for the behavior of her parents. Fourteen years ago through irresponsible sexual relations, David and Linda brought a child into the world. That David was notified only recently makes Kristie no less his daughter and he no less her father. If her mother was dilatory, Kristie still has a right to back support from her father, just as she had the right to be supported by her mother over those same years. In the climate of bitter disputes, we must keep in mind the object of child support. It is neither punishment nor reward. Nor is it paid or withheld on a parent’s good or bad conduct. Children’s needs should never rest on such inconstan-cies.
[¶ 30.] To his credit, the father agrees to ongoing support, but nonetheless asserts that laches and equitable estoppel prohibit retroactive support. These defenses should be deemed unavailable because they prejudice the rights of children. Child support is a fundamental human right. Furthermore, our Legislature has by statute limited the recovery of back support to six years in paternity eases and provided other statutory remedies to alleviate financial hardship.
Discussion
[¶ 31.] Let us begin with a precept fundamental to our modern sense of morality and legal responsibility: Those who engage in sexual relations resulting in the birth of a child bear the burden of providing for that *432child. By law, parents are jointly and severally obligated for the necessary maintenance, education, and support of their children. SDCL 25-7-6.1. “[Fjortuity of gender cannot determine the extent of a parent’s obligation to his or her child.” W.M. v. D.S.C., 591 A.2d 837, 843 (D.C.1991). Truly, the right to support belongs to the children. Weegar v. Bakeberg, 527 N.W.2d 676, 679 (S.D.1995)(Amundson, J., concurring special-lyXright to support is, fundamentally, right of the child). Thus, parents may not by private act or agreement bargain it away. Estes v. Albers, 504 N.W.2d 607, 609 (S.D. 1993).
[¶ 32.] It follows then that, lacking some extraordinary circumstance, parents may not through misconduct or mistake prejudice their children’s right to support. Stack v. Stack, 369 N.W.2d 132, 135-36 (S.D.1985)(father still required to make child support payments despite mother’s noncompliance with court’s order to pay father his share of equity in marital home); see Regynski v. State of Ariz., 414 N.W.2d 612, 614 (S.D. 1987)(“Where child support is concerned, the child’s interest is the primary consideration[.]”(emphasis in original)). The obligation to support one’s children is “sacrosanct.” Golden v. Lewis, 647 So.2d 979, 981 (Fla.Dist.Ct.App.1994); see Mele v. Oliva, 448 Pa.Super. 120, 670 A.2d 708, 709-10 (1996)(eourts cannot allow the actions of the parties to control the determination of paternity and corresponding duty of support).
[¶ 33.] When, pursuant to SDCL 25-8-5, a mother attempts to “recover from the father a reasonable share of the necessary support of a child born out of wedlock,” she is not just seeking reimbursement for a debt owed to herself.4 She is enforcing, on behalf of the child, a shared obligation both parents owe to the child. State of Cal. ex rel. Struck v. Struck, 526 N.W.2d 500, 502 (S.D.1995)(presumed that custodial parent spends child support received directly for the benefit of the child); Vander Woude v. Vander Woude, 501 N.W.2d 361, 364 (S.D.1993)(child support payments are for the children’s benefit and not a debt due the custodial parent)(citing Peterson v. Peterson, 434 N.W.2d 732, 738 (S.D.1989)). See also B.G.L. v. C.L.S., 175 Ind-App. 132, 369 N.E.2d 1105 (1977).5 Our child support laws are designed not simply to furnish children with bare subsistence, so as to keep them off welfare, but to afford them a standard grounded in their needs considering what their parents can jointly provide. Billion v. Billion, 1996 SD 101, ¶ 41, 553 N.W.2d 226, 235. See generally Report of the South Dakota Commission on Child Support, December 1988; cf. SDCL 25-7-6.9.
[¶ 34.] Defenses such as laches and estop-pel, which turn on the actions or inactions of consenting adults, fail to consider children’s rights. South Dakota’s statutory scheme creates a child-centered paradigm for resolving disputes between parents: Where the protection and support of children are concerned, the faults and failings of the parents cannot control. Under no circumstances can minor children be held accountable for laches or estoppel. For these reasons, and for the additional reasons set out below, a growing number of courts refuse to countenance equitable defenses in child support arrearage disputes, except in the rarest circumstances. See Rebecca C. Raskin, Fisco v. Department of Human Services: The Inequity of Equitable Defenses in Child Support Arrearage Cases, 48 MeLRev 153 (1996).
A. Laches
[¶ 35.] With respect to the issue of ongoing support, most cases have held the affirmative defense of laches to be either inapplicable or *433unavailing in paternity actions.6 Employing the doctrine would subvert the law’s design for providing every child with parental support until age eighteen, or longer in certain circumstances. SDCL 25-5-18.1 (legal duty to support child until at least age eighteen). Nothing in our paternity statutes, SDCL ch. 25-8, suggests any legislative expectation that parental delay might adversely influence children’s support rights. In fact, legal proceedings to “establish paternity and enforce the obligation of the father may be brought at any time before the eighteenth birthday of the child.” SDCL 25-8-9 (emphasis added). So vital are the best interests of children in paternity actions that shorter limitations periods have been struck down as unconstitutional deprivations of equal protection. See, e.g., Clark v. Jeter, 486 U.S. 456, 462, 108 S.Ct. 1910, 1915, 100 L.Ed.2d 465 (1988); Weegar, 527 N.W.2d at 678.
[¶ 36.] The general rule, absent statutory preemption, recognizes a presumption of ret-roactivity of child support to the child’s date of birth. Cyrus v. Mondesir, 515 A.2d 736, 739 (D.C.1986); see J.A.W. v. D.M.E., 591 A.2d 844, 848 (D.C.1991)(“the child’s right to parental support begins at birth”); Coleman v. Mackey, 424 So.2d 170 (Fla.Dist.Ct.App. 1983); Department of Revenue v. Roe, 29 Mass.App.Ct. 967, 560 N.E.2d 1288, 1289 (1990); State ex rel. Coleman v. Clay, 805 5.W.2d 752 (Tenn.1991). A father’s obligation to support his child is not contingent on a judgment of paternity; the judgment merely grants the right to enforce his obligation. Weaver v. Chester, 195 Ga.App. 471, 393 S.E.2d 715, 716-17 (1990)(superseded by statute in other respects); Commonwealth v. Chase, 385 Mass. 461, 432 N.E.2d 510, 516-17 (1982); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816, 827 (1976)(superseded by statute in other respects). See also Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580, 583 (1993).
[¶ 37.] Most courts recoil from penalizing children for the dilatory acts of their parents. “Where child support is concerned, the child’s interest is the primary consideration.” Kost v. Kost, 515 N.W.2d 209, 214 (S.D.1994)(emphasis in original) (citation omitted). It is one thing to fault those who sit too long on their own rights, but it is quite another to penalize children because someone else sat on their rights. “The child cannot be held responsible nor should the child be punished simply because the father was not aware of his child’s birth nor because the paternity action was not begun earlier.” In re Paternity of Brad Michael L., 210 Wis.2d 437, 564 N.W.2d 354, 360 (Wis.App.1997)(action brought by child — father unaware of child’s birth for fifteen years).7 Retroactive support is not dependent on the father receiving notice. In re Paternity of A.D.W., 693 N.E.2d 576, 578 (Ind.Ct.App.1998). “In the absence of extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearages.” Fowhand v. Piper, 611 So.2d 1308, 1310 (Fla.Dist.Ct.App.l992)(quoting Armour v. Allen, 377 So.2d 798, 800 (Fla.Dist.Ct.App. 1979)); see Parrish v. Department of Health *434& Rehabilitative Serv., 525 So.2d 1029, 1030 (Fla.Dist.Ct.App.1988). See also Mele, 670 A.2d at 709 (no evidence the father would have foregone marriage and children had action been brought earlier).
[¶ 38.] The doctrine of laches “simply does not apply” to claims for retroactive child support in paternity cases. Knaus v. York, 586 N.E.2d 909, 914 (Ind.Ct.App.l992)(“This court will not penalize a child for his or her parent’s delay in pursuing child support.”); see In re Marriage of Truax, 522 N.E.2d 402, 407 (Ind.Ct.App.1988)(eight year delay in filing a petition may not be attributed to the children for whose benefit the child support was due). See also Janssen v. Turner, 292 Ill.App.3d 219, 226 Ill.Dec. 202, 206, 685 N.E.2d 16, 20 (1997)(rejecting argument that judgment for retroactive child support was a windfall for mother).8
[¶ 39.] Even if laches could somehow be invoked here, it would be inapplicable. David asserts Linda’s claim for back support is barred because Linda never told him he was the child’s father for fourteen years. “Mere passage of time is not the test.” Chicago & N.W. Ry. Co. v. Bradbury, 80 S.D. 610, 612-13,129 N.W.2d 540, 542 (1964) (citations omitted). Instead, to support laches it must be shown that: (1) Linda had full knowledge of the facts on which the action is based; (2) despite this knowledge, she engaged in an unreasonable delay before commencing suit; and (3) David would be prejudiced by allowing the action to proceed. Conway v. Conway, 487 N.W.2d 21, 24 (S.D. 1992); Golden v. Oahe Enters., Inc., 90 S.D. 263, 277, 240 N.W.2d 102, 110 (1976).
[¶ 40.] Assuming the first two elements of laches have been proved, the last element has not. Linda may claim only six years of back child support. She cannot obtain retroactive support from the date of the child’s birth. The Legislature has, by express statute, bridled the defense of laches by enacting SDCL 25-8-5, thus reconciling the competing interests between undue hardship on the father and the child’s well-being in receiving adequate support. SDCL 25-8-5 provides:
The mother may recover from the father a, reasonable share of the necessary support of a child born out of wedlock.
In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years’ support furnished before bringing an action may be recovered from the father.
(emphasis added). With this statute, our Legislature has effectively eliminated the need to. decide whether a mother has unreasonably delayed bringing an action for child support.
[¶ 41.] Faced with similar statutes, other courts have reached the same conclusion. The Idaho Supreme Court held:
The legislature has weighed the equities of sheltering defendants like Annen from liability over an extended period of time and resolved the matter by statute. The public policy concerns about stale claims are adequately served by the three-year statute of limitations. See Napowsa v. Langston, 95 N.C.App. 14, 381 S.E.2d 882, 887 (N.C.Ct.App.l989)(refusing to apply laches to action for retroactive child support).
State Dep’t of Health & Welfare v. Annen, 126 Idaho 691, 889 P.2d 720, 722 (1995). Likewise, in upholding a claim for past child support, the Minnesota Supreme Court stated in M.A.D. v. P.R., 277 N.W.2d 27, 29 (Minn.1979):
In 1971, the legislature added the following limitation to the paternity statutes: “The father’s liabilities under this chapter for past education and necessary support of the illegitimate child are limited to a peri*435od of 4 years next preceding the commencement of an action.” Minn.St. 257.255. We have concluded that this section is an “express statute”_ It reflects the same legislative concern as would an ordinary statute of limitations— that the legislature has considered the desirability of protecting the defendant from liability over an extended time period and resolved the matter by a statutory provision. Thus, laches is not available as a defense to a paternity action. Further consideration of its elements is therefore unnecessary.
(citation omitted). See also Schaefer v. Weber, 567 N.W.2d 29, 33-34 (Minn.l997)(citing two-year back support statute).9 Another indication of legislative intent to forestall equitable defenses is in the discretion permitted in our child support guidelines allowing for a deviation in cases of financial hardship. See Section C below. Let us now turn to the defense of equitable estoppel.
B. Equitable Estoppel
[¶ 42.] David argues that Linda should be estopped from seeking to enforce payment of back child support because she failed to tell him of the birth for fourteen years, depriving him of his legal rights as a parent.10 Until today, we have never before applied the principles of equitable estoppel in a dispute over retroactive child support in a paternity case, but even if it were appropriate to do so, the defense is inapplicable here. To constitute equitable estoppel, each of the following elements must be proved by clear and convincing evidence: (1) a false representation or a concealment of material facts; (2) the victim must have been without knowledge of the real facts; (3) the representation or concealment must have been made with the intent that it be acted on; and (4) the victim must have relied on the misrepresentation or concealment creating prejudice or injury. Heupel v. Imprimis Tech., Inc., 473 N.W.2d 464, 466 (S.D.1991); L.R. Foy Constr., Inc., v. South Dakota State Cement Plant Comm’n, 399 N.W.2d 340, 344 (S.D.1987); Taylor v. Tripp, 330 N.W.2d 542, 545 (S.D.1983). “Essential to equitable estoppel is the presence of fraud, false representations, or concealment of material facts.” Crouse v. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d 413, 417 (citing Valley Bank v. Dowdy, 337 N.W.2d 164, 165 (S.D.1983))(other citations omitted).
[¶ 43.] We see equitable estoppel most often in cases where a person obtains a benefit by taking one position, then later takes a position inconsistent with the first one, resulting in prejudice to other persons who relied on the original position. See generally H. McClintock, Eqtiity § 31 (2d ed 1948). Linda’s actions, though complacent and thoughtless, amount to nothing more than mere silence.11 Failing to notify David of the child’s existence is not misrepresentation or intentional concealment under the doctrine of equitable estoppel. Absent a duty to speak, a parent’s mere silence over an extended time is, most often, insufficient to support an estoppel defense. Adams v. Adams, 593 P.2d 147, 148 (Utah 1979); see also Zoe G. v. Frederick F.G., 208 A.D.2d 675, 617 N.Y.S.2d 370, 371 (1994)(doctrine of equitable estoppel triggered by conduct; mere silence or failure to disclose insufficient). Cf. Burrow v. Vron-*436tikis, 788 P.2d 1046 (Utah Ct.App.1990)(stat-ing mother’s assertion to mutual friend that she wanted nothing to do with father combined with father’s reliance on this information was sufficient to bar mother’s claim for back child support brought seven years after child’s birth). In those courts where the defense is still viable, equitable estoppel may bar the recovery of child support arrearages only when the party asserting estoppel presents clear and convincing evidence to support such a finding and when the welfare of the child will not be jeopardized. See Heupel, 473 N.W.2d at 466; L.R. Foy Const., Inc.; 399 N.W.2d at 344; see also Schnepp v. State ex rel. Dep’t of Econ. Sec., 183 Ariz. 24, 899 P.2d 185, 190 (Ariz.Ct.App.l995)(quoting State ex rel. Dep’t of Econ. Sec. v. Dodd, 181 Ariz. 183, 888 P.2d 1370, 1373 (Ariz.Ct.App. 1994)); State Dep’t of Human Serv. v. Irizarry, 893 P.2d 1107, 1109 (Utah Ct.App.1995), aff'd, 945 P.2d 676 (Utah 1997)(equitable es-toppel bars mother from seeking past child support where she repeatedly stated that she wanted nothing to do with father, refused support when it was offered, and he, in reliance, married and incurred other obligations); Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420, 431 (1986).
C. Equitable Deviation In Setting Past Child Support
[¶ 44.] South Dakota law clearly allows for retroactive child support in paternity cases but does not specify how it should be calculated. Under SDCL 25-8-5, a mother “may recover a ... reasonable share of the necessary support .... ” (emphasis added). Here, the referee used the child support guidelines to compute David’s back support amount.12 The guidelines were generally designed for prospective application. Nonetheless, I believe that in deciding what method to use in ascertaining what is a “reasonable share” of back support, the relevant statutes and case law tend to indicate that the guidelines are presumptively applicable in determining the amount of a retroactive child support award. See Linard v. Hershey, 489 N.W.2d 599, 602 (S.D.1992)(applying SDCL ch. 25-7 to retroactive support in paternity action). But see White v. Allen, 667 A.2d 112, 114 (Me. 1995)(“The child support guidelines do not apply to an award of past support” — term “necessary support” in statute allows reimbursement to mother of actual expenses); Royston v. Stayton, 859 S.W.2d 276, 277 (Mo.Ct.App.l993)(law of necessaries, rather than child support guidelines, applies to determine amount of award of retroactive child support for five-year period before paternity petition filed).
[¶45.] Our child support guidelines allow for an equitable adjustment when financial circumstances warrant it. SDCL 25-7-6.10 (deviation allowed when financial condition of either parent would make application of the schedule inequitable). See Brandriet v. Larsen, 442 N.W.2d 455, 460 (S.D.1989)(citing the 1985 Report Of the South Dakota Commission On Child Support, n. 3). The Child Support Commission’s report states in part: “[T]he use of uniform guidelines has certain advantages, including: (4)[a]llows for deviation from the schedule for special circumstances upon specific findings.” 1985 Report at 14. The Commission “felt that the guidelines should allow for consideration” of those circumstances in which a noncustodial parent had incurred substantial debts that could not have been anticipated at the time the child support obligation would commence. 1988 Report at 12. The report further noted:
The Commission discussed extensively a reference to the general financial condition *437of either parent as a deviation. Although the Commission has concerns about the potential abuse of such language, the Commission believes that there may be other financial conditions which would make the application of the guideline schedule inequitable. The Commission anticipates that there will be a high burden on the party seeking to utilize this deviation and that the deviation will not be used indiscriminately so as to destroy the purpose of the guidelines.
1988 Report at 13. By allowing for a deviation for unique financial circumstances, the Commission, and later the Legislature, avoided the destructive and needless problem of weighing fault between parents, as is done with equitable defenses, to arrive at a fair support amount when substantial evidence of financial hardship is shown. Amen, 889 P.2d at 722 (although laches not available, past support amount figured under guidelines may be adjusted for financial circumstances). Here, the child support referee found sufficient grounds for a deviation. I would affirm the decision, but would remand for a closer look at the father’s present financial situation so that a fair amount of past support can be determined, in addition to a reasonable payment schedule.
[¶46.] The majority abandons a principle that ought to be too well-established and too fundamental to be lost: Child support cannot be withheld to punish miscreant parents. Even when parents behave in ways undeserving, children should not be made to suffer. In view of this decision, I can only hope that in the near future our Legislature will give even clearer direction on back support. I would also hope, that this Court will not further extend the defenses of estoppel and laches to the harm of innocents. But most of all, I pray today’s ruling will not last long as this Court’s otherwise unblemished legacy to South Dakota’s children.
. The majority interprets this statute to revive the archaic notion that unwed mothers may only obtain "reimbursement” from the fathers of their children for actual support the mothers "furnished.” I suggest this is a stilted interpretation and overlooks the words "reasonable share of the necessary support.”
. Interpreting language identical to SDCL 25-8-5, the court inB.G.i,., 369 N.E.2d at 1109 wrote: When the mother is reimbursed, the amounts paid will likely benefit the child by improving the financial situation of the mother and thereby enable her to provide her share of support for the child in the future and to provide better physical surroundings for the child.... Its order of support promotes the purpose of the act: to enable a child born out of wedlock to have those rights and privileges enjoyed by children born in wedlock.
. See, e.g., Perez v. Singh, 21 Cal.App.3d 870, 97 Cal.Rptr. 920 (1971); Cartee v. Carswell, 425 So.2d 204 (Fla.Dist.Ct.App. 1983); People ex rel. Reeder v. Reeder, 131 Ill.App.3d 841, 86 Ill.Dec. 874, 476 N.E.2d 50 (1985); Howell v. Brummell, 293 Md. 646, 446 A.2d 1149 (1982); M.A.D. v. P.R., 277 N.W.2d 27 (Minn. 1979); McNulty v. Heitman, 600 S.W.2d 168 (Mo.Ct.App.1980)(superseded by statute on attorney fee question); State ex rel. Dep't of Human Serv. v. Davis, 99 N.M. 138, 654 P.2d 1038 (1982); Williams County Soc. Serv. Bd. v. Falcon, 367 N.W.2d 170 (N.D.1985); Roboski v. Fink, 447 Pa.Super. 520, 669 A.2d 1017, 1017 (1996); Shell v. Law, 935 S.W.2d 402 (Tenn.App. 1996); Prejean v. Prejean, 592 S.W.2d 660 (Tex.Civ.App.1979); Nettles v. Beckley, 32 Wash.App. 606, 648 P.2d 508 (1982); Ellison v. Walter, 834 P.2d 680 (Wyo.1992).
. Some jurisdictions declare that the right to bring an action for current or past support belongs not to the parent, but to the child. See State on Behalf of Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998); N.M. v. J.G., 255 N.J.Super. 423, 605 A.2d 709 (1992); McGlaston v. Cook, 576 So.2d 1268 (Miss.1991); Baggs v. Anderson, 528 P.2d 141 (Utah 1974). SDCL 25-8-5, however, requires the mother in a paternity action to bring the action for support on behalf of a child bom out of wedlock, at least at the outset. See Weegar, 527 N.W.2d at 679-80 (Konenkamp, J., concurring specially)(children should have coterminous or independent right to bring paternity action).
. With respect to denial of equitable defenses in divorce arrearage cases see Womkey v. Womkey, 12 Kan.App.2d 506, 749 P.2d 1045 (1988)(laches not available because child support top important social concern); Lyon v. Lyon, 143 Vt. 458, 466 A.2d 1186 (1983); Taylor v. Taylor, 14 Va. App. 642, 418 S.E.2d 900 (1992); Paterson v. Paterson, 73 Wis.2d 150, 242 N.W.2d 907, 910 (1976)(equitable defense of laches is not available in a proceeding brought to secure enforcement of a child support order in a divorce action). See generally John C. Williams, Annotation, Laches or Acquiescence as Defense, So as To Bar Recovery of Arrearages of Permanent Alimony or Child Support, 5 A.L.R.4th 1015 (1981 & 1997 supp.)(collecting cases and analyzing whether laches may bar a former spouse from recovering arrearages of court-ordered alimony and child support).
. Some jurisdictions still allow a laches defense in actions seeking retroactive child support. See, e.g., State v. Garcia, 187 Ariz. 527, 931 P.2d 427 (Ariz.Ct.App.1996); Seegert v. Zietlow, 95 Ohio App.3d 451, 642 N.E.2d 697 (1994); Hallums v. Hallums, 296 S.C. 195, 371 S.E.2d 525 (1988). None of these cases dealt with a statute limiting back support as we have here, however.
. David relies on this Court's holding in Hershey v. Hershey, 461 N.W.2d 484 (S.D.1991) in asserting a custodial parent may be estopped from seeking court-ordered child support from the noncustodial parent where the custodial parent has concealed the whereabouts of a child for an extended period of years. Although David's argument attempts to mirror the argument made by the father in Hershey, we reserved judgment on the estoppel argument there. We went on to note in Hershey that based upon mother's concealment of the child since 1971, she waived her right to receive the court-ordered child support after 1971. That case is quite distinguishable in that the mother in Hershey waited until the child reached majority to seek arrearages. A number of courts have found this to be a valid reason to deny a custodial parent's arrearage claim.
.The majority relies on defense counsel's leading question to state that the mother intentionally prevented contact between father and daughter. Nonetheless, the referee made no such finding, concluding only that she "did little if anything to notify” him.
. If the majority wants to punish the mother but protect the child, perhaps the back support could be placed in a trust. Some courts allow for the creation of a trust for various reasons, including the child's future educational needs or because of concerns the custodial parent might misuse a lump sum back support award. See In re Paternity of Tukker M.O., 199 Wis.2d 186, 544 N.W.2d 417 (1996). See also Judith G. Mcmullen, Prodding the Payor and Policing the Payee: Using Child Support Trusts to Create an Incentive for Prompt Payment of Support Obligations, 32 New-EngLRev 439 (1998). However, a trust on child support arrearages must be created only with the consent of the custodial parent or upon a finding that it is necessary to protect the best interests of the child, otherwise it undermines the custodial parent’s decision making authority. Cameron v. Cameron, 209 Wis.2d 88, 562 N.W.2d 126, 135 (1997). In South Dakota divorce actions, support trusts are at least impliedly authorized. SDCL 25-4-42; Iverson v. Iverson, 90 S.D. 374, 379, 241 N.W.2d 583, 585 (S.D.1976).