Opinion
2021-06810 P-02680/19
12-07-2021
In the Matter of Amber N., Petitioner-Respondent, v. Andrew S., Respondent-Appellant. Appeal No. 14764-14764A No. 2020-01790
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Karen Freedman, Lawyers for Children, New York (Shirim Nothenberg of counsel), attorney for the child.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Karen Freedman, Lawyers for Children, New York (Shirim Nothenberg of counsel), attorney for the child.
Before: Renwick, J.P., Mazzarelli, Singh, Mendez, Higgitt, JJ.
Orders, Family Court, New York County (Jane Pearl, J.), entered on or about February 5, 2020, which, after a hearing, equitably estopped respondent from seeking genetic marker testing and declared him to be the father of the subject child, unanimously affirmed, with costs.
Family Court properly determined that the best interests of the child require that respondent be equitably estopped from denying paternity of the child. Respondent is named as the child's father on the birth certificate and was married to the child's mother at the time of his birth, although the marriage was annulled 12 years later. Further, the record shows that respondent assumed the role of a parent to the child from the moment the child was born and allowed the child to believe that he was his father for the next 11 years of his life (see Matter of Commissioner of Social Servs. v Julio J., 20 N.Y.3d 995, 997 [2013]; Matter of Jennifer S. v Tony J., 143 A.D.3d 518 [1st Dept 2016]; Matter of Christian N. v Shante Jovan B., 132 A.D.3d 470 [1st Dept 2015]). Moreover, the child formed a familial relationship in reliance on respondent's conduct with his paternal grandfather and great-grandmother (see Matter of Department of Social Servs. v Donald A.C., 179 A.D.3d 603, 604 [1st Dept 2020]; Matter of Smythe v Worley, 72 A.D.3d 977, 979 [2d Dept 2010]).
Respondent's purported reason for demanding a DNA test, to remove his doubts as to whether he was the father, is not a sufficient basis for ordering a DNA test, almost 13 years after the child's birth (see Matter of Glenda G. v Mariano M., 62 A.D.3d 536, 536 [1st Dept 2009], lv denied 13 N.Y.3d 708 [2009]). The fact that the relationship between respondent and the child became limited after respondent assaulted the child, does not preclude the application of the doctrine of equitable estoppel, nor does it relieve respondent of his support obligations (see Donald A.C., 179 A.D.3d at 604; Richard B. v Sandra B.B., 209 A.D.2d 139, 143-144 [1st Dept 1995], appeal dismissed 87 N.Y.2d 861 [1995]).
The record is sufficiently complete to permit this Court to make an independent factual review and draw its own conclusions as to whether petitioner established that respondent should be equitably estopped from denying paternity (see e.g. Matter of Allen v Black, 275 A.D.2d 207, 209 [1st Dept 2000]).