Ma, Ma, Who's My Pa

My court officer calls the case. One woman and two men file into the courtroom accompanied by their attorneys and the attorney for the child. From the gallery, the woman’s pink thong is visible above her low slung stretch pants. The thong underlines a lower back tattoo that reads “Foxy.” Our court records reveal that the mother is 29 and this child is her seventh. The seven children have four fathers. We’re just not sure yet who the fourth one is. The first man has three other kids of his own and the second man has two---that we know of---by other women. There is a potential here for 12 siblings or half-siblings. Several don’t know that the others exist. The mothers of those children will also have other children by other men. The genetic daisy chain, without doubt, will eventually reconnect

This is a paternity case---sort of. It arrived at Family Court because the “father” heard that he might not be the father of the two year old child and he wants to vacate the acknowledgment of paternity that he signed at the hospital when the baby was born. Another man has stepped forward claiming to be the true father. I am told that the child calls both men “daddy.”

The case first stopped at the Support Magistrate, who punts it to the Court when he hears that the child is two years old and may have two fathers. Magistrates have no authority to hear these types of paternity cases. Case law, then legislative ratification, requires that these conflicting claims must be resolved before DNA tests are ordered. This is an issue of paternity by collateral estoppel. Welcome to the twilight zone of fatherhood in New York.

Last time, we discussed recent Court of Appeals cases on this subject. This is a court invented principle of law that works like this: A woman has a baby and deceives a man into believing he is the father. This action, however, requires more deception, as lies can rarely act alone. She must also deceive the real father into believing that he is not the father and, most importantly, she must be prepared to deceive her child for the rest of the child’s life about her true father. So our great common law, that created such noble principles as duty of care, acting in good faith, fiduciary duty, clean hands and implied warranties, which all have at their core the bed rock principle of honesty, has created a principle of law that is based on lying to children so that a man who is not the biological father of a child will be required to pay child support. While this may sound crazy in theory, it is completely nuts in practice.

The appellate courts invented paternity by estoppel with no clue about what was really happening in Family Court. They started with the concept of detrimental reliance. First, as noted above, the mother holds out to the child that a man who is not her father is her father. In reliance on that falsehood, the child creates a father-daughter bond. The child, so holds the COA, cannot be put at risk by the breaking of this fraudulent bond, so the law will deem the non-father to be the real father. I suppose this might work if the dirty little secret never gets out, but it always does. In truth, the social science upon which this theory rests, as Jeremy Bentham would have said, is nonsense on stilts.

The first reason that paternity by collateral estoppel is such a bad idea is that it works a complete fraud on the only truly innocent person, the child. The second reason is that, contrary to the Court of Appeals’ premise, we never end up saving a parent for a child. The reason the people are in Family Court to begin with is because everything has gone to hell in a handbag and collateral estoppel is all about collecting child support, not nurturing father-child relationships.

To illustrate how screwy this all is consider this: Say there was a step-father who raised a child as his own for 15 years and the child believed that the man was her father. Then the mother finds another man and Mr. Step-Father finds himself out the door. Step-dad then goes to Family Court to get an order for parenting time so he can still see his “daughter.” Forget about it, he loses, no way, nada, nyet, nugatory, impossiblé. The Court of Appeals has emphatically held that only a biological parent can assert parental rights. New York State does not recognize psychological parenthood. On the other hand, if the mother wants to extract some child support from the guy she’s got collateral estoppel on her side, so she wins.

If we change one fact in this scenario, then everything else changes. If the child knew that the man was only her step-father but they loved each other like father and daughter, the step-father would still have no right to see the child and the child has no right to see her step-father after the break-up. Balancing out this folly is, I suppose, the fact that the mother can’t collect any child support from the step-father. Welcome to family law in New York brought to you by the New York State Court of Appeals.

There are other bad aspects of paternity by collateral estoppel which legally sanctifies the creation of faux fathers. Take the child’s medical future. Because the government has, in effect, conspired with the deceiving mother to deny a child the right to have her real father identified, the child will forever be denied the ability to know her genetic heritage and her ancestors medical history on her real father’s side. If she would be saved by an organ or bone marrow transplant or a blood transfusion, this will not happen because the law has slammed the door shut on half of her biological family. It follows from this that the child will also be deprived of her right to establish a relationship with her father, paternal siblings, paternal grandparents, aunts, uncles, cousins, nephews and nieces.

Finally, a child has an inalienable right to have her biological parents identified. This is a proposition so unassailable that it needs no support in any constitution, statute or appellate decision. This proposition can also be absolutely proven by stating the following two obverse propositions. “A child has no right to know the identity of her parents” and “parents have no right to know the identity of their child.” Just to state them shows how ludicrous they are.

I am sure you have noticed by now that paternity by collateral estoppel affects only fathers. Except for some bizarre and remote circumstances, we always know who the biological mother is. It is also worth remembering that the only true goal of paternity by collateral estoppel is to collect child support from someone who is not the father of the child. Knowing that he is not the true father he will, in virtually all circumstances, walk out the door on the child, both emotionally and financially.

With 80% of babies in the inner city being born to unwed mothers, there are a lot of these cases in Family Court. Unfortunately, we see paternity petitions being filed for kids who are 12 and older. I often ask the mother or the putative father if he is the petitioner, if they would drive around a car for 12 years that was not registered and titled in their names. The analogy seems to go over their heads. No doubt that somewhere a brother and sister have married or had a child not knowing that they were related. Right now, the policy is to get the willing father to sign the affidavit at the hospital while he’s still feeling all warm and cuddly about his new child. This policy was introduced as a welfare reform measure because the Feds wanted to start collecting child support while the iron was still hot. It sounds better in theory than it does in practice. Imagine, you can take title to a child with no questions asked with just your signature. It doesn’t even have to be notarized. These affidavits frequently come back to Family Court with requests by the “fathers” to have them set aside for reasons too numerous to list.

Getting back to our original “family,” all three eventually consented to DNA tests. The faux father was determined to be a faux father and the real father stepped up to claim his daughter, now two years old. He asks that the child’s last name be changed to his. The mother objects. She wants her daughter to continue to carry the name of the faux father. I explain that Family Court does not have jurisdiction over name changes. On the way out of the courtroom, the mother says they could hyphenate the child’s last name. Faux dies hard.

Since marriage does not appear to be making a comeback, except for gays and they have their own special paternity issues, what’s the answer to this significant problem. I say DNA tests at birth unless it’s a married couple. So, “Mama may have and Papa may have but God bless the child whose got his own…who’s got his own.”[ii]