child support: judging misrepresentation & reliance in Shondel

On a visit to Guyana in 1995, Mark met and had sex with Shondel.  The record provides no indication that they intended their relationship to be anything beyond a short-term sexual affair.  After Mark returned to New York, Shondel became aware that she was pregnant.  She misrepresented to Mark (and subsequently to a U.S. family court) that she knew that the child was Mark’s.  Mark, living in New York, took some actions to support Shondel and the child, living in Guyana.  When the child was just under five years old, Shondel and Mark’s relationship deteriorated.  Shondel then sought court-determined financial child support from Mark.  A DNA test found that the child was not Mark’s biological child.  Nonetheless, a family court ordered Mark to pay to Shondel $78 per week as financial child support.  In the Matter of Shondel J. v. Mark D. (2006), the highest appellate court in New York State upheld that imposition of financial fatherhood on Mark.  What judicial reasoning supported this decision?

The appellate court’s decision rested on the reasoning of a child under five years old.  The court reasoned:

Mark represented that he was the father of the child, and she {the child} justifiably relied on this representation, changing her position by forming a bond with him, to her ultimate detriment.  He is therefore estopped from denying paternity. [1]

Legal obligations typically are based on representations among adults who have capacity to contract.  Here, the court attributes contracting capacity to a child from birth to just under five years of age.  The court further explained:

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. [2]

Mark had no contact with the child from March, 2000 to the time of the court’s decision in July, 2006.  Mark did not intend to provide emotional support to the child or the child’s mother, or have any relationship with them at all, at any time in the future.  A court cannot compel emotional support. What’s called “child support” in this and similar cases has nothing to do with emotional support.  It’s money, pure and simple.  What financial obligation did the baby/young child perceive that Mark’s representations to her implied?  How did the baby change her behavior in response to her perception of Mark’s financial obligations to her?  How would Mark ceasing to provide financial payments to the young child make the child worse off than if Mark had never made any financial payments to her?  These questions baffle a reasonable adult.  Nonetheless, the appellate court, with keen understanding of the mind of a baby, perceived that the baby/young child’s reasoning justified New York State ordering Mark to pay Shondel $78 per week.

The court’s reasoning about how babies are made is similarly childish.  The court’s decision stated:

to the extent that it matters, we note that there is no evidence of fraud or willful misrepresentation even on Shondel’s part.  It is not likely that she would have initiated paternity proceedings, with the predictable prospect of biological testing, if she expected tests to rule him out as the father.  There is every reason to believe that she thought Mark was the biological father and that the tests would confirm her belief. [3]

Shondel believing that Mark is her child’s biological father is different from her knowing that Mark is the biological father.  She would know that Mark is the biological father only if she didn’t have sex with another man during the relevant period.  She did have sex with another man.  Hence she did not know who the biological father is.  That’s simple biology.  Pretending otherwise, at least among adults who know how babies are made, is willful misrepresentation.  That misrepresentation goes far beyond Shondel.  When imposing legal fatherhood on men, the U.S. legal system commonly misrepresents biological facts.

The court showed little concern for men’s choice.  Under a New York State statute, a court can order child support in ignorance of biological paternity “upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.”[4]  According to that literal statutory language, a court has authority to make a finding about the “best interests of the child” based on consideration of arcane and archaic legal concepts: “res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.”  That’s not common sense of the “best interests of the child.”  The statute thus permits, but does not require, courts to invoke paternity by estoppel to force financial fatherhood on a man.  With respect to the fundamental human value of becoming a father, New York State’s highest appellate court declared:

Given the {above described} statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make.  He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. [5]

Think of the child: what if the child calls you “daddy”?  Are you to cause potential damage to the child’s psyche by telling the child not to call you daddy?  More seriously, the court’s statement displays abstract legal complacency (“some strain is inevitable”) that jars painfully against the legal reality of undue influence, misrepresentation, and mis-service in the legal process of paternity establishment.  That structure of injustice is not inevitable.  Men could be given reasonable reproductive rights and good, meaningful opportunities to choose to be a father

In the U.S. legal system, the best interests of the child obliterates men as persons with rights under law.  In judging whether Mark should be compelled to make child support payments to Shondel for at least eighteen years, the highest appellate court in New York State declared:

the issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.  … The child is entirely innocent and by statute the party whose interests are paramount. … Under the enactment, the mother’s motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served. [6]

The claim that the statute obliterates the legal persons of adults shows the tenuous legal rights of adults in the U.S. today.  Just proclaim “Think of the children!” and an elaborate structure of rights, laws, and legal process turns into judges gravely pondering the “best interests” of a child that they do not know personally at all.

In legal decisions, judgments of the “best interests of the children” primarily camouflage judgments of other interests.  What a courageous scholar stated about child custody decisions applies equally well to decisions of legal paternity:

child custody cases are not really about children: they are about adults. What is especially interesting, however, is the extraordinary length to which adults go to deny this plain truth.  Ask any professional associated with child custody disputes and the one thing he or she is sure to emphasize is that their only purpose is to resolve the dispute “in the best interests of the child.”  As I hope to make clear, this is not simply false, it succeeds as a coverup to hide the degree to which the disputes serve adults’ interests. [7]

The child support system enforces a large transfer of money from men to women on the basis of nothing more than men having sex of reproductive type with women.  Both with respect to child welfare and gender equality, the “child support” system functions badly.  The legal doctrine “best interests of the child” serves to make impossible urgently needed systemic reform of family law.

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[1] In the Matter of Shondel J. v. Mark D., 7 N.Y.3d (2006) at 328.  The extent of Mark’s relationship was a matter of highly conflicting claims in the Family Court.  The appellate court’s majority opinion and the dissenting opinion likewise present contracting pictures of Mark’s relationship with the child.  The majority opinion shows no appreciation for tactical behavior in a relationship and before a Family Court.  Such tactical behavior is common among humans.  The dissenting opinion describes relevant relational facts:

At the time of the paternity proceeding, the child had lived most of her life in a different country from Mark D., and their relationship was primarily on the telephone.

Id., Smith, dissenting opinion, at 335-6.

[2] Id., majority opinion, at 330.

[3] Id.

[4] N.Y. Family Court Act § 532 (a).

[5] Shondel J. v. Mark D. (2006), majority opinion, at 331-2.

[6] Id at 330, 331.

[7] Guggenheim (2005) p. 143.  See also id. pp. 153, 157-8. Cohen (2012a) and Cohen (2012b), addressing forward-looking and much less widely important policy issues, argue against the “Best Interest of the Resulting Child” (BIRC) legal justification.  Cohen declares “BIRC justifications are vacuous” and “the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter.”  Alvaré (2012), Crawford (2012), and Mutcherson (2012) take up the BIRC debate, with Cohen (2012c) responding.  The implications of this debate for the child support system remains to be worked out.


Alvaré, Helen M. 2012. “A Response to Professor I. Glenn Cohen’s ‘Regulating Reproduction: The Problem with Best Interests’.”  96 Minnesota Law Review Headnotes 8.

Cohen, I. Glenn. 2012a. “Beyond Best Interests.” 96 Minnesota Law Review 1187.

Cohen, I. Glenn. 2012b. “Regulating Reproduction: The Problem with Best Interests.” 96 Minnesota Law Review 423.

Cohen, I. Glenn. 2012c. “Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson.” 97 Minnesota Law Review Headnotes 1.

Crawford, Bridget J. 2012. “Authentic Reproductive Regulation.” 96 Minnesota Law Review Headnotes 31.

Guggenheim, Martin. 2005. What’s wrong with children’s rights. Cambridge, Mass: Harvard University Press.

Mutcherson, Kimberly. 2012. “In Defense of Future Children: A Response to Cohen’s Beyond Best Interests.” 96 Minnesota Law Review Headnotes 46.

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