EQUITABLE ESTOPPEL TO ESTABLISH STANDING FOR NON-BIOLOGICAL PARENT

Matter of K.G. v C.H., 2018 NY Slip Op 04683, Decided on June 26, 2018, Appellate Division, First Department, Gische J.:

"Although prior to Brooke the doctrine of equitable estoppel was not available to establish standing on behalf of nonbiological, nonadoptive parents, it has been relied upon by New York courts in resolving many family disputes involving children. For instance, the legal doctrine has been applied to prevent an adult from denying paternity where a child has justifiably relied upon the representations of a man that he is the father and a parent-child relationship has developed (Matter of Shondel J. v Mark D, 7 NY3d 320, 326 [2006]). It has been applied to prevent a mother from challenging her husband's paternity (Matter of Sharon GG. v Duane HH., 63 NY2d 859 [1984], affg 95 AD2d 466 [3d Dept 1983]). It has also been applied to prevent a biological father from asserting paternity when he has acquiesced in the establishment of a strong parent-child bond between the child and another man (Matter of Cecil R. v Rachel A., 102 AD3d 545, 546 [1st Dept 2013]). Recently, it was successfully invoked to prevent a sperm donor from asserting paternity to a child born in an intact marriage (Matter of Joseph O. v Danielle B., 158 AD3d 767 [2d Dept 2018]). A unifying characteristic of these cases is the protection of " the status interests of a child in an already recognized and operative parent-child relationship'" (Shondel, 7 NY3d at 327, quoting Matter of Baby Boy C., 84 NY2d 91, 102n [1994]). Equitable estoppel requires careful scrutiny of the child's relationship with the relevant adult and is ultimately based upon the best interest of the child (see Shondel at 326; see also Family Court Act § 418). Likewise, in the context of standing under Domestic Relations Law § 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child (Brooke, 28 NY3d at 27). It is for this reason that the child's point of view is crucial whenever equitable estoppel is raised.<sup>[FN7]

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In view of our conclusion that the record is incomplete, we do not reach CH's argument that because CH did not consent to holding KG out as a parent, KG cannot prove equitable estoppel. While some courts in other jurisdictions consider consent of the biological/adoptive parent an outcome determinative factor in equitable estoppel cases (see e.g. Pitts v Moore, 90 A3d 1169, 1179 [Me Sup Jud Ct 2014]; Matter of Parentage of LB, 155 Wash 2d 679, 708, 122 P3d 161, 176 [2005], cert denied 516 US 975 [1995]; In re Custody of H.S.H.-K., 193 Wis 2d 649, 694-695, 533 NW2d 419, 435-436 [1995], cert denied 516 US 975 1995]), New York has not yet formulated any dispositive test. Judge Kaye, in her dissent in Alison D., generally posited that the test for someone claiming standing on the basis of loco parentis should require that the relationship with the child came into being with the consent of the biological or legal parent (77 NY2d at 661-662). Notwithstanding that Judge Kaye favored consent as a factor in determining issues of de facto parenthood, she also would have remanded the matter to the trial court to devise an actual test. Brooke, although liberally citing Judge Kaye's dissent, did not reach this issue all.

We recognize that not every loving relationship that a child has with an adult will confer standing under Domestic Relations Law § 70, no matter how close or committed. It requires a relationship that demonstrates the relevant adult's permanent, unequivocal, committed and responsible parental role in the child's life. The underpinning of an equitable estoppel inquiry is whether the actual relationship between the child and relevant adult rises to the level of parenthood. Anything less would interfere with the biological or adoptive parent's right to decide with whom his or her child may associate (Troxel v Granville, 530 US 57 [2000]; Brooke at 26 [recognizing that any expansion of the definition of parent must be appropriately narrow to account for the fundamental liberty rights of biological and adoptive parents]). Consent, whether express or implied, is an important consideration that bears upon the issue. It may be that in this case the issue of CH's consent becomes a predominant consideration in the ultimate determination of whether equitable estoppel can be established. We only hold that the record developed at trial does not permit us to make the full consideration necessary to finally determine the issue of equitable estoppel at this point."