Wednesday, July 12, 2006

Hard Cases = Bad Laws

I have so many complicated feelings about this ruling. I mean ultimately it was a bad moral decision, but a good legal one. I guess that’s why they say hard cases make bad laws.

One of the biggest problems I had with this Mark D. was the fact that with no thought whatsoever he signed off on immigration papers for a child (and her mother). Let’s face it although that wasn’t mentioned in the piece, no one is going to let a child immigrate here alone. This was a package deal that Mark D. signed our names to.

So he enabled two new citizens to reach our shores; thus, guarantoring what exactly?

That the tax-payers of New York State would cheerfully assume the liability he so carelessly tossed upon us? I mean as soon as this child and her mother were here due to Mark D.’s initiative they have to be provided for. So this article leaves out a whole other angle here which is to wit: Who is providing for these two new immigrants who Mark D. has enabled to join our ever-growing family? Was the child’s mother working? Was she making enough to be able to provide housing for herself and the child? What about medical care? AND last but not least, who would be responsible for all of this if the child’s mother could not be; if she became unemployed or ill, decided to quit her job or any number of other things that could happen to cause this child to become a dependent and need taxpayer funded assistance?

Was Mark D. willing to foot the bill here?

The bottom line is that every child is guaranteed a certain standard of living once they cross our borders. There is no such thing as prorated rights for children once you are here. You’re in the game for a penny or a pound, same thing. Thus, someone has to pay to provide a certain standard of living: food, shelter, clothing, schooling, medical care, etc., if and when a parent cannot do so or refuses to do so for any reason.

I mean let’s extrapolate Mark D.s situation out to the millions of American men as tourists or even soldiers abroad if they decided to sponsor a child (they claim as their own) and it’s mother to the US. THEN turn around and claim it is NOT their child, so they are no longer willing to be responsible for the child’s upkeep? Can we just revoke the child’s and mother’s citizenship then? Or their immigrant status whatever it is? Sorry. No can do. We are not going to upend the entire American immigration apparatus and childrens’ lives to convenience foolish men, that’s for sure.

So the question is not really fairness to Mark D. vis-à-vis the child’s mother but what is fair to that child as well as fair to all the rest of us. Thus we cannot allow men (fathers or otherwise) to default on their financial obligations AFTER they have already established a child and it’s mother’s status here. Just remember a LOT of child support is reimbursement to the taxpayers’ for public benefits WE have expended on that child’s behalf. So that’s what we are leaving ourselves open to if we support the Mark D.s of the world, taxpayers getting stuck with the bill when fathers refuse to pay for any reason.

I’m sorry for Mark D. but he should have been more careful about sharing his precious citizenship rights with someone he didn’t appear to know very well. He seems to have given himself (and let’s make no mistake about this situation Mark D. GAVE the liability to himself, the courts just kept it where Mark D. initially placed it, at his own feet). Anyway he has given himself a liability of at least $200,000 over a 21 year period, maybe more as child support in NYS runs roughly about 10,000 annually…(factoring in all the add ons such as his prorated share of child care AND uncovered medical expenses). So Mark D. has given himself a tidy burden. But before we shed any tears for Mark D. let’s remember one thing: that burden could have easily morphed into a burden on ALL the rest of us in New York State IF the courts did not return it to its rightful place at the feet and in the wallet of Mark D.

Thus as I said legally the ruling was correct, although morally obviously it has some defects.

The only comfort I can think of to give Mark D. is that a few courts have allowed men who were victims of paternity fraud to sue in civil court for damages. This is a slow but steadily growing trend which some Judges are allowing to ease the burden on men in the future, if and when the child is no longer collecting public benefits. This way if the girl’s mother is working and he wins his case, he can collect from her salary each week, (maybe it will offset the child support). Or if the mother ever buys a house or some other asset at a later date (and it happens all the time immigrants come here and ten years later own property worth a few hundred thousands dollars, happens every day); anyway Mark D can use the judgment to confiscate the child’s mother’s assets and reimburse himself from that.

Otherwise if this mother NEVER works, NEVER buys any property or anything of value then it looks like Mark D. is simply out of luck. Hopefully he has learned, and other men have learned from this story, to NOT be so careless in trying to assign their 'little liabilities' to innocent NYS taxpayers in the future.

N.Y. High Court Says Mistaken Avowal of Fatherhood Imposes an 'Equitable Paternity'
John Caher

New York Law Journal
July 11, 2006

He who acts like a father, is a father -- if not biologically than at least legally -- the Court of Appeals said Thursday in imposing "equitable paternity" on a man who wrongly assumed he had fathered a girl and acted accordingly.

The court in Matter of Shondel J. v. Mark D., 40, upheld the trial court and the Appellate Division, 2nd Department, in ordering a man to pay child support on behalf of a child he did not father. In doing so, it recognized the legislatively endorsed concept of "equity paternity," or paternity by estoppel (see Family Court Act §§ 18 [a] and 532 [a]).

Shondel J. centers on a Guyana native who, while living in New York, met a woman in Guyana while visiting family in 1995. After the man, Mark D., returned to New York, the woman, Shondel J., informed him that she was pregnant and carrying his child.

Mark did not dispute his paternity. Instead, he helped pay for Shondel's pregnancy, visited the girl he thought was his and made her a beneficiary of his life insurance. He also signed a letter affirming his fatherhood so the child could obtain immigration papers. In 1999, he married another woman, and they have children.

The next year, Shondel moved to New York and lodged a paternity petition in Brooklyn, and Mark filed a separate visitation petition. A court-ordered DNA test proved that Mark was not the father.

At that point, Mark attempted to sever ties with the girl. But he was equitably estopped from disclaiming paternity and ordered to pay child support. The child support amounted to $78 weekly, plus retroactive support of $12,859. Mark has had no personal contact with the child since March 2000.

On appeal, Mark argued that the imposition of "equitable paternity" effectively saddled him with an involuntary adoption, in violation of the Constitution and contrary to public policy.

But the 2nd Department, and now the Court of Appeals, focused not on whether Mark got a raw deal, but on the best interests of the child.

"In allowing a court to declare paternity irrespective of biological fatherhood, the Legislature made a deliberate policy choice that speaks directly to the case before us," Judge Albert M. Rosenblatt wrote for the 5-2 majority. "The potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given."

Like the lower courts, the Court of Appeals found that Mark had in every way held himself out to be the child's father -- buying her Christmas and birthday presents, referring to himself as "daddy," introducing her to his family, and regularly communicating with her. Mark had claimed he had rarely seen or had contact with the child, but none of the courts hearing his case believed him.

"The issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child," Judge Rosenblatt wrote. "The Legislature did not create an exception for men who take on the role of fatherhood based on the mother's misrepresentation ... [T]he mother's motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served."

All four women on the court -- Chief Judge Judith S. Kaye and Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo and Susan Phillips Read -- joined Rosenblatt. Judge George Bundy Smith dissented in an opinion joined by Judge Robert S. Smith.


The dissenters objected to the application of estoppel against a "completely innocent litigant" who was misled by the child's mother. They noted that the woman swore in Family Court that she had not had sexual relations during the relevant time span with anyone other than Mark, an assertion that DNA analysis proved was a lie.

They said the decision rewards people who make no effort to nurture or support a child who may be their own while penalizing people like Mark who immediately assumed responsibility.

"With this decision, this Court supports a public policy that says a man should never take on a parental role unless he wants to be unconditionally responsible for the child's financial support," Judge Bundy Smith wrote.

Judges Smith and Bundy Smith concluded that it could not serve the child's best interests "to have an order of filiation declare respondent to be her father, a man, who in addition to having no biological tie, has no interest in continuing a relationship with her or her mother."

Mark was represented by Ann L. Detiere of Manhattan. Steven P. Forbes of Queens argued for Shondel while Barbara H. Dildine of Brooklyn appeared as law guardian.

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