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Is establishing paternity in the best interests of a child who had been living with a foster family? Wilson D. v. Anne B., 2021 N.Y. Slip Op. 51144 (N.Y. Fam. Ct. 2021)


The long-standing policy in New York has been that parents have the right to have a relationship with their children and that it is generally in the best interests of the child for the courts to give parents and children the opportunity to foster a positive relationship.  However, there are circumstances where the court finds that it would be in the best interests of the child to not have a relationship with a parent.  In Wilson D. v. Anne B., the court was asked to decide if it would be in the best interests of the child to establish paternity where a child had been living in foster care and a bond had developed between the child and the foster parents.


While incarcerated, the putative father of the child filed a petition for custody. Because paternity had not been established, the court held his petition in abeyance pending the court of a paternity test. Meanwhile the child has been placed in foster care and the foster parents developed a close bond with the child.

Prior to the DNA results being received by the court, New York Foundling Hospital filed a petition seeking dismissal of the putative father’s motion to establish paternity. It based its petition on the doctrine of equitable estoppel and also argued that a dismissal would serve the child’s best interests. The foster parents filed an affirmation in support of the Foundling Hospital’s petition.

The New York Family Court first examined the Foundling Hospital’s argument that the putative father’s claim to paternity should be barred based on the doctrine of equitable estoppel.  They argued that in the interest of fairness and to prevent harm to the child, the putative’s father’s case should be dismissed. The Foundling Hospital bases the estoppel argument on the putative father’s delay in coming forward to establish paternity. It argues that because of the delay, it would not be in the best interests of the child for paternity to now be established. In addition, in their affirmation in support of the Foundling Hospital’s motion, the Foster Parents argued that the putative father’s inaction caused both the child and them to rely on a non-assertion of parentage to their detriment, and that they developed a parent-child bond accordingly. They argued that if the child was uprooted, the child would be harmed.

Both the Foundling Hospital and the foster parents argue that the putative father forfeited his right to seek a paternity finding because of his delay in doing so. The attorney for the child supported the position of the foster parents.

The father’s argued that his delay was not due to inaction, but to his incarceration and his inability to find out the name of foster care agency that placed the child. Further, the putative father argued that the correctional facility did not provide him any help in locating the child and the foster care agency did not attempt to contact him.  He argued that it would be in the child’s best interest to know who is biological father is and establishing a relationship with him.

The court agreed with the putative father.

It noted that because there is a statutory emphasis on nurturing a relationship between a child and their biological parents, foster parent’s rights are always limited and are not on the same footing as the rights of biological parents. In fact, the only time that foster parents have standing to seek custody of a child is after the parental rights of the biological parents have been terminated.

Nonetheless, the court looked at the estoppel argument and found that it had no merit.  It was not the inaction of the putative father that caused a delay in his seeking a determination of paternity.  In fact, there has been no evidence that the Foundling Hospital fulfilled its legal duty of  attempting to locate the putative father. The father argued that he was incarcerated in Pennsylvania when the child was born and was denied access to filing assistance by the correctional facility.

The court concedes that the child may suffer some harm if his relationship with his foster parents is disrupted. The court also noted that it is important for a child to know his biological family and that he would suffer harm if denied that opportunity. Establishing paternity is in the best interests of a child, even if the child had been living with a foster family that wished to adopt him.


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