Opinion
P-xxxxx/13
08-13-2015
In the Matter of a Paternity Proceeding Dwayne H., Petitioner, v. Michael A. and C. T., , Respondents.
APPEARANCES: Vivienne Hewitt, Esq. 26 Court St. # 2506 Brooklyn, NY 11242 Counsel for Dwayne H. C. T. xxxxxxxxxxxxx Brooklyn, NY 11226 Pro se Edward Caesar, Esq. 26 Court St. # 2401 Brooklyn, NY 11242 Legal Advisor for Ms. T. Larry Margolis, Esq. P.O. Box 24986 Brooklyn, NY 11202 Counsel for Michael A. Teresa Grogan, Esq. Children's Law Center 44 Court St. # 11 Brooklyn, NY 11201 Attorney for the Child
APPEARANCES:
Vivienne Hewitt, Esq.
26 Court St. # 2506
Brooklyn, NY 11242
Counsel for Dwayne H.
C. T.
xxxxxxxxxxxxx
Brooklyn, NY 11226
Pro se
Edward Caesar, Esq.
26 Court St. # 2401
Brooklyn, NY 11242
Legal Advisor for Ms. T.
Larry Margolis, Esq.
P.O. Box 24986 Brooklyn, NY 11202
Counsel for Michael A.
Teresa Grogan, Esq.
Children's Law Center
44 Court St. # 11
Brooklyn, NY 11201
Attorney for the Child
Erik S. Pitchal, J.
Now pending before the Court is a motion (#1) brought by order to show cause on behalf of respondent Michael A., requesting that the Court 1) refrain from taking into evidence the results of DNA testing and 2) reschedule an equitable estoppel hearing, the Court having found him in default of the initial such hearing. For the reasons that follow, the motion is denied.
At the time the motion was heard on the record, counsel for the movant had not filed the order to show cause papers and so no motion number was assigned. In an effort to preserve judicial resources, the Court elected to hear and decide the motion on the return date, and directed counsel to file it afterwards so that this decision and order would be linked to the specific application he made.
Background
This is a paternity proceeding initiated by petitioner Dwayne H., concerning the child S.T., born on July 6, 2011. The petition named Ms. C. T., S.T.'s mother, as the sole respondent. Mr. H. signed his petition on September 4, 2013, but it was not actually filed in court until December 9, 2013. Issue was not joined until August 20, 2014, at which time he was assigned counsel.
Meanwhile, on May 30, 2014, ACS filed a petition against Ms. T. alleging that she had neglected S.T. (as well as her older brother who is not a subject of this paternity proceeding). On August 14, 2014, Ms. T. and Mr. Michael A. together executed an acknowledgement of paternity for the child S.T., and Mr. A. was added to the child's birth certificate. On January 15, 2015, ACS filed an amended petition in the neglect proceeding, adding Mr. A. as a respondent, alleging him to be S.T.'s father and a person legally responsible for S.T.'s brother.
For various reasons, action was not taken on Mr. H.'s paternity petition for many months after issue was joined. Ultimately, the petition was referred to the undersigned for further proceedings, even as the neglect docket proceeded before a different judge.
An appearance on the paternity docket occurred before the undersigned on June 3, 2015. Upon learning that Mr. A. was an acknowledged father of the child whose name appeared on the birth certificate — notwithstanding that he acknowledged paternity only after this petition was filed — the Court deemed him a necessary party and added him to the case as a respondent. See Order dated June 3, 2015. Mr. A. asserted that Mr. H. should be equitably estopped from claiming paternity and requested a hearing. Over the objection of Mr. H. and the attorney for the child, the Court scheduled the hearing, to take place on July 1, 2015 at 2pm. Mr. A. was present in court when this hearing was scheduled.
Mr. A. did not appear on July 1, and the Court deemed his application for an equitable estoppel hearing waived. Mr. H. and the attorney for the child requested DNA testing, which the Court ordered. The matter was scheduled for a conference on August 13, 2015, to receive the results of the DNA testing.
Pending the decision on this motion, the Court did not review the DNA results, though they had been received by the Part. The Court instructed the Part Clerk to segregate the results from the file until the conclusion of the motion hearing. The Court remained unaware of the results until after the decision on the motion was rendered on the record.
Counsel for Mr. A. presented the instant order to show cause to the Court on August 11, 2015, and it was signed and made returnable to join the conference. In addition to reviewing the moving papers, the Court heard argument from all parties on August 13, 2015.
Analysis
As in other civil litigation, the Court may vacate a default in a paternity action in its discretion, if the disadvantaged party has a reasonable excuse for the default and a meritorious claim. See C.P.L.R. § 5015(a)(1); Helen T. v. Roosevelt B., 256 AD2d 583 (2d Dep't. 1998). In this case, Mr. A. does not present a reasonable excuse for having missed the equitable estoppel hearing that the Court had scheduled, at his request, for June 3, 2015. His affidavit in support of the motion contains no explanation whatsoever for his having missed the court date.
The only articulation of his excuse for missing the hearing is contained in the affirmation of his attorney. No justification is provided for why Mr. A. himself could not swear to the facts supporting the "reasonable excuse" requirement of the statute.
The excuse offered by counsel is that Mr. A. was stuck on a bus that was scheduled to arrive at Port Authority at 1pm on the date of the hearing, which was to commence at 2pm. According to counsel, the bus was delayed, not arriving until 1:45, and Mr. A. did not make it to the courthouse until 2:40. No explanation is offered for why Mr. A. did not contact his attorney concerning his whereabouts, so that the Court could be informed and make an appropriate determination.
The proffered reason for Mr. A. being on the bus was that he was returning from Georgia, where he had traveled to obtain documentation from the hospital where the child had been born, purportedly to prove that he had been present at the birth. (Documents from the hospital concerning the child's birth were attached to the motion, though not in an admissible form.) No explanation is offered for why Mr. A. waited until the last possible moment to travel to Georgia to obtain these documents, when the hearing date had been selected almost one month prior.
Even assuming the excuse offered was credible and reasonable, the Court finds that the motion papers do not support a finding that Mr. A. has a meritorious claim for equitable estoppel in this case. Without a prima facie showing in the motion, the Court need not schedule a hearing. R.B. v. W.L., 9 Misc 3d 973 (Fam. Ct. Nassau Co. 2005).
The principle animating the concept of equitable estoppel is fairness. The law imposes equitable estoppel when it is necessary to prevent the enforcement of rights that would cause an injustice to another party who justifiably relied to her detriment on the opposing party's actions or inactions. Jean Maby H. v. Joseph H., 246 AD2d 282 (2d Dep't. 1998). The primary concern in a paternity proceeding in which equitable estoppel matter is asserted is the best interests of the child. Id.; Louise P. v. Thomas R., 223 AD2d 592 (2d Dep't. 1996).
In general, putative fathers are equitably estopped from asserting paternity when they fail to claim their legal rights in a timely way, and when this delay permits the child to form a parent-child bond with another man. David L. v. Cindy Pearl L., 208 AD2d 502 (2d Dep't. 1994); Cecil R. v. Rachel A., 102 AD3d 545 (1st Dep't. 2013); Glen T. v. Donna U., 226 AD2d 803 (3d Dep't. 1996). Typically, estopped petitioners have waited many years before filing for paternity. See Cecil R., 102 AD3d at 546 (almost four years); David L., 208 AD2d at 503 (four years); Glen T., 226 AD2d at 803 (seven years). The disruption to the child's life that would result in these cases, in the event it were proven by DNA testing that the petitioner were the biological father, would be significant, because of the father-child relationship formed with a different man. Courts will not disrupt relationships between a child and "the only father she has ever known," Cecil R. at 546; or where the child has the last name of another man and is enrolled in school with that name, David L. at 504; or where the other man has lived with the child and her mother "as a family unit" for an extensive period of time, Glen T. at 803.
Mr. A.'s affidavit is spare in its assertions. He claims that he had sexual intercourse with Ms. T. from July 20, 2010, to January 31, 2011, and that he was present for S.T.'s birth. A document from the hospital does indicate he was present. Mr. A. also asserts he signed an acknowledgement of paternity "shortly after" her birth; however, the acknowledgement of paternity attached to his motion indicates it was signed on August 14, 2014, some three years after the child was born.
Concerning the child, all that Mr. A. claims is that since the child's birth, he has "been involved in assisting in S.T.'s childcare including but not limited to changing diapers, feeding, taking her to doctor's appointments, and outings." He does not claim to live with her and Ms. T., nor to have parented her — only that he "assist[ed]" in child care tasks. While he does note that the child "knows me as her father and calls me daddy," he does not claim to love her like his own child — or that he loves her at all.
Finally, Mr. A.'s affidavit is devoid of any assertions concerning Mr. H.. Notably, he makes no claim that Mr. H. has been a non-presence in the child's life. Nor does he state what the impact would be on the child were she to find out that Mr. H. were her biological father.
Some courts have found that the movant seeking to equitably estop a claim of paternity must demonstrate his entitlement to that relief by clear and convincing evidence. See, e.g., C.M. v. S.H., 16 Misc 3d 217 (Fam. Ct. Nassau Co. 2007). Regardless of the quantum of proof required, Mr. A. has not made the necessary showing to justify a hearing. Though Mr. H. waited over two years to file his paternity claim, Mr. A. did not sign an acknowledgement of paternity until after Mr. H. had filed his petition. There is an insufficient proffer that it would be contrary to the child's best interests to order DNA testing.
Conclusion
For the foregoing reasons, motion # 1 is DENIED. The Court will take into evidence the DNA results, and otherwise proceed on the paternity petition without conducting an equitable estoppel hearing.
Dated: August 13, 2015ENTER
____________________________________
Hon. Erik S. Pitchal