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    NYCYIKES's Avatar
    NYCYIKES Posts: 12, Reputation: 1
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    #1

    Sep 18, 2009, 07:25 PM
    Step father & Child Support
    My fiancée was ordered to pay child support (and put the child on his insurance) for a child that is not biologically his. I have done my research for family law in NYC and have found no law forcing a step parent to pay for a child that is not biologically theirs. My fiancée married the ex when the child was 3yrs old (she is now 11). Furthermore, the child's biological father is on the birth certificate and the ex maintains contact with him. She refuses to take him to child support because she claims "he will ask for visitation".
    Is there something that we can do to object, appeal, etc. quoting a specific law or lack thereof?
    stinawords's Avatar
    stinawords Posts: 2,071, Reputation: 150
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    #2

    Sep 18, 2009, 07:53 PM

    Did he adopt the child when they were married?
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,304, Reputation: 7692
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    #3

    Sep 18, 2009, 08:09 PM

    When she filed for support, did he object in court, did he even show up in court ? Does he have a attorney, ( most likely no from your statements)
    NYCYIKES's Avatar
    NYCYIKES Posts: 12, Reputation: 1
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    #4

    Sep 18, 2009, 09:53 PM
    He never adopted the child when they were married to avoid this situation. He did show up to court, he did have a lawyer who tired to argue the case in his favor however the magistrate kept interrupting him. This is a NYC case. Any guidance would be greatly appreciated.
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    NYCYIKES Posts: 12, Reputation: 1
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    #5

    Sep 18, 2009, 09:56 PM
    FYI: He did object to everything and the support magistrate stated "get a lawyer' which he did dispte the fact that she left him with 350 after child support. By the way, my fiancée has an 8yr old child with this person. Any guidance would be greatly appreciate.d
    stinawords's Avatar
    stinawords Posts: 2,071, Reputation: 150
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    #6

    Sep 18, 2009, 10:30 PM

    How much was the support order before the second child was added? He would obviously have to pay support for the first child. If the judge ordered support for a child that isn't his and he can prove it then he needs to get a better lawyer and go back to court.
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    NYCYIKES Posts: 12, Reputation: 1
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    #7

    Sep 18, 2009, 11:18 PM
    This all started a year ago. He was ordered to pay childsupport for both children simultaneously. The amount now stands at $x for both. I thought the same thing. Perhaps he does need a new lawyer. That's easier said than done as that kind of cash does not come around that easily.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #8

    Sep 19, 2009, 10:21 PM

    Hmmm….it sounds strange for me.
    I can see one way your fiancée to be ordered to pay child support for his step-child.It depends on his previous behaviour. The court may hold that because he acted like a parent and permitted the child to rely upon him -- even though he was legally a "stranger" to the child.- he adopted the biological or "real" parent's duty.
    According to s.c.”Estoppel theory” if he promised to support the child in question and interferred in child’s and father’s relationship, he will be obligated to continue his support after divorce.
    The doctrine may apply when each of three elements exists: (1) an actual or implied representation which induces conduct or forbearance of another; (2) an act or omission by another, in reliance on that representation; and, (3) resulting detriment to the relying party.

    The triggering representation occurs when a stepparen voluntarily promises to provide economically for a child to whom that person owes no legal duty of support; and/or he does so, in fact.
    The relying party's conduct, or failure to act, consists of either releasing the other legal parent from his support obligation, or of failing to pursue a non-paying obligor; either at the request of the volunteer payor, or because the need to do so is eliminated by the voluntary support.

    ALI principles divсde parents as legal parents and parents by estoppel. It is possible support obligations to be imposed under this estoppel theory:
    1 whether the person and the child act toward each other as parent and child and, if so, the duration and strength of that behavior;
    2 whether the parental undertaking of the person supplanted the child's opportunity to develop a relationship with an absent parent and to look to that parent for support;
    3 whether the child otherwise has two parents who owe the child a duty of support and are able and available to provide support; and
    4 any other facts that may relate to the equity of imposing a parental support duty on the person.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #9

    Sep 19, 2009, 10:22 PM

    If you give me some additional information, I will be able to give you reasons for appeal.
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    NYCYIKES Posts: 12, Reputation: 1
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    #10

    Sep 22, 2009, 08:47 PM

    That would be great. Please post your email address. I do not wish to continue posting things on this site. I appreciate your valuable resource and information.
    With much gratitude, M.
    J_9's Avatar
    J_9 Posts: 40,293, Reputation: 5645
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    #11

    Sep 23, 2009, 05:57 AM
    Quote Originally Posted by NYCYIKES View Post
    Please post your email address.
    Offline solicitation is prohibited at AMHD.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #12

    Sep 23, 2009, 06:09 AM
    Quote Originally Posted by NYCYIKES View Post
    That would be great. Please post your email address. I do not wish to continue posting things on this site. I appreciate your valuable resource and information.
    With much gratitude, M.
    The rules of this site generally prohibit taking threads offline. One of the purposes of a site like this is to have problems dealt with in the thread so others can learn from them.

    I'm curious though as to your reason for not wishing to continue to post here.
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    NYCYIKES Posts: 12, Reputation: 1
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    #13

    Sep 23, 2009, 09:24 AM
    I'm not sure if the person I'm talking about is reading this as she is resourceful and savvy online. I've already disclosed enough of the scenario where she can put 2+2 together. If I'm getting the reasons to object to her request, I'd rather receive the information privately so that she doesn't know what are our arguments. That is why I asked the person to give me his/her email address.
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    NYCYIKES Posts: 12, Reputation: 1
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    #14

    Sep 23, 2009, 09:31 AM
    Quote Originally Posted by GV70 View Post
    If you give me some additional information, I will be able to give you reasons for appeal.
    What kind of information do you need? He is getting divorced and was married for 7. He married her because she was pregnant. The non-biological child was already 3yrs old when he came into the picture. He says the child called him by his name for aobut 1yr until his own biological daughter started saying daddy. The mother has contact with the biological father and he comes to NY regularly (he lives in another state). Furhtermore, she reports she won't take him to child support because he will ask for visitation. She claims he is an unfit father due to some alleged criminal background.

    Is this enough information?
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #15

    Sep 23, 2009, 10:32 AM
    Quote Originally Posted by NYCYIKES View Post
    ........Is this enough information?


    No:)
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #16

    Sep 23, 2009, 11:32 AM
    GV,
    Can you detail what additional info you need? The facts as I see them are as follows.

    Man marries woman with 3 yr old daughter when she got pregnant with his child. Eight years later they divorce and a NYC court ordered him to pay child support for BOTH children.

    In addition, the bio father of the older child is not out of the picture, but the mother refuses to file for support from him because she does not want to give him visitation doe to previous criminal behavior.

    I'm not sure what additional info would be required.

    One though I had is the step-father suing the bio father for what he has to pay to support the bio father's daughter. Would that be a possibility?

    To the OP, I do think he needs a new lawyer. I've also edited some of the information to make it harder to recognize.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #17

    Sep 24, 2009, 01:07 AM

    Scott, I see you do not understand the proceedings of appeal.

    The appeal is not against the background facts.The appeal is against the judge's decision and it has to be proven that the judge erred ordering support.

    There are a lot of unanswered questions in this case.
    I need of their divorce decree and the child support order.I need of additional background facts,too.I need them to understand which doctrine judge used to impose child support obligation-the doctrine of loco parentis,doctrine of equitable estoppel ,doctrine of contractual obligation of support or the judge was an a$$$$hole abused his/her discretion.


    One of these doctrines is not recognised in NIS/Chiarello v. Chiarello, 51 A.D.2d 1089, 381 N.Y.S.2d 156 -after divorce, relationship as stepparent was terminated, and there was no duty to support former wife's children/,
    Knill v. Knill, 306 Md. 527, 510 A.2d 546 /Furthermore, the court noted, the child had not suffered financial loss as a result of his relationship with his mother's former husband because there was no evidence that the relationship had made it impossible for support to be received from the biological father/


    Here is a list of paramount important questions:
    Whether he provides financially for the child
    Whether he discipline the child as a parent would
    Whether he hold himself out to the child and to the public that he is responsible as a parent to that child
    Whether the child still has a relationship with his/her absent biological parent
    Whether he and his spouse have had their own child, creating a blended step family
    Whether his step-child participates in his family the same way as his biological child does
    Whether the step-child uses his last name
    Whether he has ever considered adopting the child
    Whether the step-child calls him Dad
    Whether he has a good or a poor relationship with his step-child, and how long it lasted
    Whether he ever took any steps to exclude the biological parent from the child's life and showed him intended to replace that parent
    How old the child is, and if he/she ever knew her absent biological parent
    Does he have custody and/or visitation rights?

    The doctrine of in loco parentis may operate, for example, to prevent a step-parent who has
    Stood in loco parentis from bringing a suit against the step-child's parent to recover amounts paid to support the child. It does not create any directly enforceable support obligation toward the step-child.


    The doctrine of equitable estoppel may apply when each of three elements exists: (1) an actual or implied representation which induces conduct or forbearance of another; (2) an act or omission by another, in reliance on that representation; and, (3) resulting detriment to the relying party.If the elements of estoppel are established, the court went on to say, estoppel would run in the child's rather than the mother's favor.
    See Christensen v. Chrsitensen/NJ/
    A step father who acquiesced in the mother's efforts to keep the child from seeing the biological father and from seeking child support from the biological father was responsible for child support. /the Court stated that it was not ruling on the obligation of the biological father, and may well find, under appropriate circumstances, that both a biological and a step parent have concurrent child support obligations./
    A stepparent may contract to provide support for a stepchild after divorce, an obligation that the stepparent would not otherwise have. E.g. Dewey v. Dewey, 886 P.2d 623 /support ordered based on agreement of parties/
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #18

    Sep 24, 2009, 01:11 AM
    Quote Originally Posted by ScottGem View Post
    One though I had is the step-father suing the bio father for what he has to pay to support the bio father's daughter. Would that be a possibility?
    No,only the custodial parent or DCSE may sue the bio father for child support.
    Unfortunately for OP neither the mother,nor DCSE are interested in forcing this man to pay as long as the step father is under obligation to pay CS.
    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #19

    Sep 24, 2009, 01:13 AM

    ... but in my opinion the step father may sue him under Doctrine of Unjust Enrichment
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #20

    Sep 24, 2009, 05:57 AM
    Quote Originally Posted by GV70 View Post
    ...but in my opinion the step father may sue him under Doctrine of Unjust Enrichment
    First, I do understand the doctrine of appeals. My thinking was that the judge may have erred in not considering the bio father's part in all this.

    Second, that's pretty much what I was thinking in the step father suing the bio father. Obviously the step father can't sue him for support, but the step is being damaged by the bio's not supporting his child and that could be the basis of a suit.

    From the laundry list of questions, my thinking it would be better for the Step Father to get an attorney. If all that info is needed, I think that goes beyond the scope of a site like this.

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