Paternity Case Analysis

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The court’s application of equitable estoppel, while simultaneously rejecting the equitable parent doctrine, creates an arbitrary distinction between different classes of cuckolded husbands.

The first category of such husbands are those such as Randy, who believe that his wife’s child is his until after he has developed a father-child emotional bond with the child.

The second category includes two subgroups: a husband who is promptly told that the child is not his, but who nevertheless raises it as if it were his own; and a husband who is never actually told that the child is not his, and who raises it as if it were his own, but who, for one reason or another, could not reasonably have believed himself the father.

Under the court’s analysis, only those in the first category, such as Randy, can rely on equitable considerations to prevent another man from being declared the child’s father.

That the analysis adopted by the court achieves this unfair result is best exemplified by examining the two leading Wisconsin Court of Appeals’ decisions that apply the now-defunct equitable parent doctrine (besides the case at bar): J.J. v. R.J., 162 Wis.2d 420, 469 N.W.2d 877 (Ct.App.1991); and L.H. v. D.H., 142 Wis.2d 606, 419 N.W.2d 283 (1987).

The facts in J.J. are largely indistinguishable from those in the case at bar. “The husband fed her, changed her, bathed her, and ‘took care of her any way she needed.’

The husband bought the child food and clothing. The child called him ‘dada,’ seems to enjoy his company and played with him. …the husband ‘seemed to be the child’s father.’” J.J. 162 Wis.2d at 428. Not until the husband moved for custody did the mother tell him he was not the biological father. Id., at 429.

The court of appeals did not engage in distinct equitable estoppel/equitable parent doctrine analyses, but effectively merged the two. Although the court declared that the husband shall be considered the child’s “equitable parent,” its reasoning process was virtually identical to that in the case at bar, concluding, “on the facts of this case, the mother is estopped, on equitable principles, from seeking a declaration in these proceedings that the husband is not the child’s natural parent (emphasis added).”

Thus, even if J.J. were to be reconsidered in light of the case at bar, the result would be the same; the only difference would be that the term “equitable parent” would not be used.

In L.H., however, the result might be different. In that case, “The mother became pregnant, realized her husband was not the father, and scheduled an abortion. She later decided to cancel the abortion, possibly relying on her husband’s promise to raise the child as his own. Following the birth of D.L.H., the husband did indeed treat the child as his, knowing that it was not.” L.H., 142 Wis.2d at 609.

In a case such as this, the equitable estoppel doctrine might not be available to the husband. He would have to show three elements: (1) an action or an inaction that induces; (2) reliance; (3) to his detriment. Harms v. Harms, 174 Wis.2d 780, 785, 498 N.W.2d 229 (1993).

Arguably, because he knew the child was not his, he could not show that he relied on any action or inaction of his wife to his detriment.

Under the specific facts of L.H., however, it is still possible that he could, by arguing that he promised to raise the child as his own (reliance), based on the wife’s promise that she would abide by the same fiction (action or inaction).

Having then become emotionally involved with the child in a father-child relationship (detriment, as it were), the wife should be equitably estopped from revoking her acquiescence to the fiction and proving another man the biological father.

Suppose, however, that the husband was told the child was not his, but he proceeded to raise it as his own, even though there was no promise such as the one implicit in L.H. Both the first and second elements of equitable estoppel would be missing. Only the close father-child emotional involvement is present.

In the wake of the Supreme Court’s rejection of the equitable parent doctrine, the husband could not prevent the wife from contesting his fatherhood.

Or suppose that the wife did not tell the husband that the child was not his, but the circumstances are such that he could not possibly believe that the child was his.

Perhaps the husband is sterile, or there had been no marital relations even near the conception period, or the child’s race is inconsistent with the husband’s paternity.

Even if the first element of equitable estoppel could be met, the husband could not possibly show that he relied on the wife’s action or inaction. He must surely have known that he was not the biological father, and therefore, his support for the child and his emotional bond with the child could not be the result of reliance on his wife’s failure to tell him that he was not the father.

The second element of reliance would be missing, and the husband could not use equitable estoppel to prevent another man from being declared the father.

In contrast, under the equitable parent doctrine that the court rejected, all of these husbands would be able to prevent another man from being declared the father.

Noticeably absent from the court’s decision is any explanation of how the distinction described above is equitable. From reading the decision, it can be interpreted as demonstrating that the court simply failed to foresee the consequences of a blanket rejection of the equitable parent doctrine.

The court’s rejection of the doctrine consisted of a cursory two paragraph analysis. In the first paragraph, the court merely defined the doctrine: “To support the application of the equitable parent doctrine, [Atkinson v. Atkinson, 408 N.W.2d 516 (Mich.App.1987)] required only a pers
on: (1) who wants to be recognized as the child’s parent; (2) who is willing to support the child; (3) who wants the rights of custody or visitation in regard to the child; and (4) who raises ‘certain circumstances,’ that were otherwise undefined by Atkinson.”

In the second paragraph, the court held, “We do not employ the equitable parent doctrine because its parameters are too indistinct, permitting its use to create uncertainties in the law. We also do not approve its use because equitable estoppel is a well-established legal principal (sic) with definite elements that will address those instances where unfairness in a proceeding would harm children and adults, absent the intervention of the court’s equitable powers. See, David M. Cotter, Putting Family Ties First [and] Science Second, 25 Fam.Advoc. 22 (Fall 2002). And finally, to the extent the equitable parent has been employed in the past, we preclude its application in the future (citing J.J.).”

However, as is clear from the above hypotheticals, equitable estoppel is not sufficient to “address [all] instances where unfairness … would harm children and adults, absent the intervention of the court’s equitable powers.”

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Furthermore, although the court is correct that the parameters of the equitable parent doctrine (at least as the court describes it), are far too indistinct and uncertain, the remedy to that problem is simple — change the word “person” to “mother’s husband.”

The equitable parent doctrine could easily be adopted, but limited to men who were lawfully wedded to the child’s mother. Doing so would not create any uncertain parameters as to its scope, and would fully, rather than only partially, achieve the court’s stated goal of addressing unfairness.

Perhaps, the court has considered these possibilities, and considers the ultimate “best interest of the child” methodology adequate to provide equitable results.

Nevertheless, attorneys for husbands unable to use the equitable estoppel doctrine should still make an argument based on this proposed modification of the equitable parent doctrine, and preserve it for review in the Supreme Court, in the possibility that the court has simply not considered all the ramifications of rejecting it entirely.

– David Ziemer

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David Ziemer can be reached by email.