In this matter, the Court faces a novel question: can a husband, who was a joint custodian over a young child for a long time, be required to pay child support when he divorces his wife, who remains the custodian of the child even if the husband has no biological link to the child?

The husband and wife filed for a divorce. The couple were married in October 2011 and obtained sole custody of a minor child in November 2012. The child's mother was dating the biological son of the husband at the time the child was born. However, the paternity of the child has never been established. It is undisputed that, at the time child was born, the biological mother was unable to sufficiently care for the child due to mental health issues. The husband and wife, now before this Court, admirably stepped in and accepted the enormous responsibility of taking in a 23-month old child and raising her for the last seven years.^[FN1] The order of custody, issued in 2012, contains language that, in part, implies that the custodians are treated as parents. The order refers to the fact that "both parents covenant, warrant and agree" that they would "not [*2]initiate or encourage the designation of 'Mother and/or Father' or their equivalent, to be used by the children [sic] with reference to any other person or persons other than the natural parents of said child." The order states that "none of the parties" — including the biological mother and the custodian petitioners — "shall do anything that may tend to alienate or estrange the child from the other parent." The order adds that "neither party shall interfere with the natural development /parent/child relationship between the child and the parent/grandparents . . . " The order concludes with a ban that "neither parent" should use alcohol to excess. In short, the custodial order uses language that identifies the custodians as having the status of parents to the child.

However, despite these references in the custodial order, the couple before this Court never adopted the child even though the child lived with her custodians for more than seven years. The husband then filed a divorce action in 2016 which remains pending before this Court. From all accounts, the husband and wife are now physically separated and the subject minor child resides with the wife. During the settlement discussions and drafting of the settlement agreement, the issues related to the child — support, residency, visitation, health insurance, etc., — were not addressed. The couple then submitted a default judgment for the Court's consideration and the Court, sua sponte, raised the issue of whether the husband, as a custodial parent who had raised the child for seven years, was obligated to pay child support under New York law.

After the Court raised the prospect that the husband might be obligated to pay support because of his role as a long-term custodian for the child, the husband applied in Monroe County Family Court for an order terminating his custodial status over the child. The husband, in his petition to modify the prior court order, argued that he no longer wished to be a custodian of the child and wished to withdraw his consent to be a custodian. He also represented that he had only resided with the child for a period of four years, from 2011 through 2015. He added that in his pending divorce action, his wife was seeking "custody of the subject minor child" and hence, it would not be in the child's best interest for him to continue as a custodian. Finally, he represented that an order removing him as a custodian would not "prejudice the child" because his wife and the biological mother "can continue to provide for the child's needs and plan for the child's future, thus preventing the child from becoming a public charge." In making this attestation, the husband seemingly understood that "continuing" support for the child could be — and perhaps should be — a factor in weighing whether his petition to discontinue as a custodian should be granted. Interestingly, there is no evidence that the family court considered the respective incomes of the custodians when the husband applied to rescind the custodial status. However, in their application for a divorce, the husband indicated his annual income in 2016 was more than $83,000 and the wife's income was approximately $34,000. The wife in the divorce action appeared before the family court judge but did not submit any opposing papers.

The Family Court granted summary judgment, eliminating the husband's "custodial and residency rights and eliminating his responsibilities relative to the child." Even before the husband was removed as legal custodian of the child, he argued that this court cannot order child support in a divorce action where the parties are "non-parent custodians to a minor child," stating that the subject minor child is not a "child of the marriage." The husband cites DRL § 240 (1-b) which states that child support is "a sum to be paid pursuant to court order or decree by either or both parents..." The husband claims that in his previous role as custodian, he never was a "parent" and thus, cannot be obligated to financially support the child.

The wife argues that while the husband has now removed himself from the child's life, he had previously "aided" in the child's "emotional support" and provided "essential" financial support to the child's care and comfort. In essence, the wife claims that the husband acted as a parent for several years and only now denies a parental connection to the child to avoid paying child support. She argues that the doctrine of judicial estoppel "precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed." Ford Motor Credit Company v Colonial Funding Corp., 215 AD2d 435 (2d Dept. 1995).

The New York courts have used equitable estoppel "to estop a purported nonbiological father who was known by a child to be the child's parent from denying his paternity to evade support obligations." Brian B. v Dionne B., 267 AD2d 188 (2d Dept. 1999)(plaintiff/husband estopped from challenging paternity to avoid his support obligations, five years after the judgment of divorce was entered). In the Matter of Commissioner of Social Servs.of Tompkins County v Gregory B., 211 AD2d 956 (3d Dept. 1995), a man met a woman who was three months pregnant with child. The couple never married, but cohabited for approximately three years. Even though the man was clearly not the biological father, he admitted that he was, and orders of filiation and support were entered. Several years later the man sought to vacate these orders and the court ruled that "[b]oth parties received the benefit of the court's judgment...the putative father openly acknowledged his fatherhood and developed a relationship with the child." Id. at 958. The court then remitted the case back to Family Court "for the appointment of a Law Guardian of the child and to further develop the record relating to application of the doctrine of estoppel." Id. The court made clear that equitable estoppel is only to be used to protect the best interests of the child:

In determining whether to vacate an order of filiation, the focus should be on the parent-child relationship, the need to protect the child from the brand of illegitimacy and what is in the best interest of the child before determining whether the doctrine of estoppel is to be applied.

These examples suggest that the doctrine of equitable estoppel can prevent a "non-biological father" from avoiding his child support obligations. The question in this case is whether the husband was in fact a putative father to the child, did he acknowledge his "paternal" relationship with the child and how long did it persist. These questions need to be answered to determine the bests interests of the child and to determine whether equitable estoppel should be applied to protect those interests and prevent the husband, in his role as the father figure to the child, from evading them. When viewed from the perspective of a court seeking to enhance the life of a child in a state that strongly favors support payments when appropriate, the fact that the husband has been released as the legal custodian of the child has very little, if any, influence on this decision.

Regardless of parental titles, the question remains: did the husband act as a Father to this child? Up to this point, there is only a brief allegation in the wife's papers that husband played a fairly large role in the child's life. These generic facts are not enough to reach that conclusion as a matter of law but the Court finds them sufficient to overcome the father's objections at this [*3]stage and deney the father summary judgment to dismiss the claim for child support. "The party asserting equitable estoppel has the burden to establish it by clear and convincing evidence." Chimienti v Perperis, 171 AD3d 1047 (2d Dept. 2019); see also Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1 (2016). Here, the wife (and the attorney for the child) have the burden to establish that the husband was the putative father to this child and acted in that capacity for a sufficient time to justify an award of child support under New York law. This Court declines to reach that conclusion based solely on the papers before the Court and orders a hearing to determine the facts and answer this question.

The application to dismiss the wife's claim for child support is denied and the matter is referred to a hearing at a date to be set by the Court after consultation with counsel.