6

Situation:

  • A wife of a married couple had extramarital affair
  • As a result, she conceived a child by the male she had affair with
  • The fact that the biological father isn't the husband isn't known to either of 3 parties.
  • Several years later (10, 15) the husband discovers the fact (and the fact is 100% provable due to DNA test performed for unrelated reason) that he is not the biological parent of the child
  • He knows who the biological father is
  • There is evidence that the affair occurred in the applicable timeframe (either electronic trail, or and the wife is willing to testify to the fact up to and including taking lie detector test).

What are the chances of winning child support (back support, or ongoing), from the biological father, in such a situation? What factors would mainly influence this?

If the answer depends on specific jurisdiction, it's New York City, NY, USA.

The biological father has enough income to be able to afford child support.

  • 1
    (1) Note that if the other man is named as father by an Order of Filiation, he may also gain custody and visitation rights. This may not be what the married couple wants. (2) The general concepts barring recognition of the other man's paternity are presumption of legitimacy and equitable estoppel; see here for a summary. – Michael Seifert Nov 5 '17 at 19:42
  • In other word, if you're married, women actually have more incentive to have sex with other guys and give birth to their child. – user4951 Mar 5 '18 at 19:35
  • Also, FWIW, while I don't mention it in my answer, the answer does depend upon a specific jurisdiction. There is not complete uniformity under the law in this area although there are many similarities. – ohwilleke Mar 5 '18 at 19:39
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The husband of the mother of a child is presumed to be that child's parent until that presumption is disestablished. In New York State, when a child is born to a married mother, a court may decline to consider DNA evidence when it is not in the best interests of the child to do so. In substance (although not exactly from a legal perspective), a failure to promptly contest the paternity of a child of a married mother gives rise to a de facto adoption.

Article 5 of the New York Family Court Act in its definitions section, § 512, makes clear that it applies only to children born out of wedlock (and it too has an equitable paternity term at § 532). So, the statutory deadline in Article 5 allowing a child with no legally determined father to have a determination made at any time before the child turns age twenty-one does not apply to this case.

Instead, this case is governed by New York Family Court Act, Article 4. New York Family Court Act § 418(a), which governs paternity cases where a child is born during a marriage provides that:

(a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child.  No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman.  The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto.  Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court.  If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act.

If DNA evidence is considered, the biological father will be determined to be the father, but if it is not considered, the husband will continue to be the legal father.

A leading case exploring when the best interests of the child test prevails over DNA evidence from New York is In the Matter of Shondel J., v. Mark D., 853 N.E.2d 610 (N.Y. July 6, 2006). In a key passage, it states:

Equitable estoppel is gender neutral. In Matter of Sharon GG. v Duane HH. (63 2 859 [1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an order of the Appellate Division dismissing a paternity petition in which a mother sought to compel her husband to submit to a blood test as a means of challenging his paternity. We agreed with the Appellate Division that the mother should be estopped. As that court pointed out, the mother expressed no question about her child's paternity until some two and a half years after the child's birth. She had held the child out as her husband's, accepted his support for the child while she and her husband lived together and after they separated, and permitted her husband and child to form strong ties together.

Estoppel may also preclude a man who claims to be a child's biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man. The rationale is that the child would be harmed by a determination that someone else is the biological father. For example, in Purificati v Paricos (154 AD2d 360 [2d Dept 1989]), a boy's biological father who did not seek to establish his paternity until more than three years after the child's birth, and who acquiesced as a relationship flourished between the boy and his mother's former husband, was estopped from claiming paternity. The courts "impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship" ( In re Baby Boy C., , 84 NY2d 91, 102 n [1994]).

Finally, the Appellate Division has repeatedly concluded that a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity.2 Where a child justifiably relies on the representations of a man that he is her father with the result that she will be harmed by the man's denial of paternity, the man may be estopped from asserting that denial.3 . . .

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings -- to serve the best interests of the child.

This continues to be good law. See, e.g. In the Matter of Thomas T. v. Luba R., 148 A.D.3d 912 (March 15, 2017) (paternity by estoppel established when child at age four did not know biological father's name and had established a strong father-child-like bond with mother's currently partner citing Shondel).

Under the circumstances, if any of the three parties: the mother, the husband, or the biological father, sought to prevent consideration of DNA evidence after ten to fifteen years of marriage during which paternity was not denied, it is very likely that the Court would agree and not change the legal paternity of the child.

In this case, the biological father would not gain legal visitation rights and would not owe child support, and neither the husband nor the mother would lose their presumed parent status, nor would they be entitled to child support.

If the husband, mother and biological father mutually agreed otherwise, the paternity by estoppel argument might be overcome and any issue of support would be governed by the mutual agreement (although a guardian ad litem for the child might be appointed sua sponte by the Court and have standing to object to the agreement on behalf of the child notwithstanding the mutual agreement of the other three parties). This would terminate husband's status as a parent and entitle biological father to visitation. But, otherwise paternity by estoppel would prevail.

Incidentally, this statute and case law position is constitutional. The U.S. Supreme Court has held that a man who conceives a child with a married woman does not have a due process right in establishing his paternity of the child, so any right that the biological father may have arises from statute and the common law, rather than from the U.S. Constitution. Michael H. v. Gerald D. (U.S. 1989).

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This is what I understood, correct me if I got it wrong here:

The wife has been married to the husband for 15 years and she has a child with an outsider through an affair. Now (husband and wife) discovers that the husband is not the biological father and would like the financial reimbursement for the contribution they have made under the assumption it was his own son/daughter.

What are the chances of winning child support (back support, or ongoing), from the biological father, in such a situation? What factors would mainly influence this?

The age of the child was not mentioned. If the child is under the age of 21, the mother has to put the biological father on child support to stop the husband from spending any more money - this is possible, you do not need an attorney if you can do the paperwork yourself

The second part of your question is, can you get the paid child support back, will depend on 2 factors. 1. who wants the money back, is it the mother or the husband? The husband can get it back 60% chance by undergoing civil litigation, but a good attorney would try to get it done outside of court by working with all three parties. 2. The mother can get 50% of what she spent on the child which is awarded solely at the judge discretion and if you are currently facing financial hardship.

Anyhow select your attorney wisely, look for an attorney that explains to you the process and ease your stress not give you more.

  • 3
    This answer is an incorrect statement of New York law, both for the reasons stated in my answer, and because a neither a non-parent husband nor a child is ever entitled to child support, prospectively or retroactively, under New York law. See NY Fam. Ct. Act § 545. Also the amount of child support is never based on what was actually spent on the child in New York State. See NY Fam. Ct. Act §§ 413 and 545. I also note that no legal authority or citation of any kind supports any part of your answer. – ohwilleke Nov 10 '17 at 5:55

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