Digest Of Hinshaw, Ky Supreme Court

DATE RENDERED: 10/31/2007

Mom appealed CA’s opinion affirming TC’s order awarding joint custody of child to parents and primary residence to Dad, claiming that TC erred when it failed to resolve Dad’s custody rights based on DNA evidence indicating he was not biological father, and by applying equitable estoppel in its custody determination.

Mom gave birth to child during marriage of parties. At birth, Dad was in the delivery room, cut umbilical cord, and was named on birth certificate. Dad was led to believe that he was biological father to child, and was deeply involved in Child’s life as his father. Three and a half years later, Mom filed for divorce, and then amended her petition, alleging for the first time that Dad was not Child’s biological father and seeking court-ordered DNA testing to prove her claim. DNA evidence established that Dad was not Child’s biological father. TC appointed a custodial evaluator, who determined that the severance of Dad’s and Child’s relationship would result in severe emotional and psychological harm to Child. TC found that Mom was equitably estopped from challenging Dad’s custody rights based on DNA testing, that DNA test was irrelevant to issue of custody, and awarded joint custody to the parties with primary residence to be with Dad. CA affirmed TC on appeal.

Mom argued that DNA tests rebutted the presumption of paternity in KRS 406.011 and thus triggered the application of KRS 406.111, requiring a resolution of paternity. Mom further argued that equitable estoppel cannot be applied in custody cases and that even if applied, Dad failed to establish the necessary elements of equitable estoppel.

“A party asserting equitable estoppel must show the following elements: (1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.” SC found that all these requirements were met in this case, as Mom’s acts, language and silence were all aimed at misleading Dad into believing he was Child’s father and at developing the father-son relationship. Though Mom argued that Dad failed to show reliance and conduct to his detriment, pointing to the fact that Dad had testified that he would not have done anything differently in his relationship with Child, SC disagreed. SC noted that Dad’s willingness to continue his relationship with Child had he known the truth is not the same as saying he would have taken no action at all. Mom’s failure to inform Dad of Child’s paternity denied Dad the opportunity to seek legal advice as to the relationship with Child and his rights and obligations with regard to Mom and Biological Father. SC noted that it followed other jurisdictions in its determination that equitable estoppel could be applied in custody cases, and that KY CA had applied the common law principle of equitable estoppel in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005).
SC held that Mom, having encouraged Father/Son relationship between Dad and Child, could not now deny it, and that under the unique circumstances of the case, “equitable estoppel precludes [Mom] from challenging [Dad’s] status as [Child’s] father, a status she created and accepted.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates