Summary
holding that the trial court erred in dismissing a paternity petition on the basis of res judicata, because "it is the child's best interests which are of paramount concern"
Summary of this case from A.F. v. K.H.Opinion
2015-03-20
In the Matter of Edward R. FROST, Jr., Petitioner–Appellant, v. Scott WISNIEWSKI, Respondent–Respondent.
Davis Law Office PLLC, Oswego (Stephanie N. Davis of Counsel), for Petitioner–Appellant. Rosemarie Richards, Attorney for the Child, South New Berlin.
Davis Law Office PLLC, Oswego (Stephanie N. Davis of Counsel), for Petitioner–Appellant. Rosemarie Richards, Attorney for the Child, South New Berlin.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
MEMORANDUM:
Petitioner appeals from an order dismissing his cross petition seeking a determination that he is the biological father of the subject child. Respondent signed an acknowledgment of paternity with respect to the child when the child was born in 2000. DNA testing, however, later established that petitioner was in fact the child's biological father. In 2011, petitioner filed a custody petition and, by default order, Family Court, inter alia, awarded petitioner custody of the child. Respondent subsequently filed a petition pursuant to Family Court Act article 6 seeking a modification of that order to permit visitation of the child with respondent and the half brother of the child, and petitioner filed a cross petition seeking an order vacating respondent's acknowledgment of paternity, determining that petitioner is the child's biological father, and directing that an amended birth certificate be filed ( see generally Family Ct. Act § 516–a). The court dismissed the cross petition with prejudice on the ground of res judicata. The record before us does not indicate the court's disposition of the petition.
Petitioner contends that the best interests of the child, “the need for finality, stability, and consistency in family determinations,” and respondent's nonopposition to the cross petition militate against the result reached by the court. We agree and conclude that the court erred in applying the doctrine of res judicata to petitioner's claims in the cross petition ( see Matter of Cleophous P. v. Latrice M.R., 299 A.D.2d 936, 936, 750 N.Y.S.2d 380). In matters concerning filiation, “ ‘it is the child's best interests which are of paramount concern’ ” (Matter of Darcie T. v. Robert M.L., 255 A.D.2d 955, 955, 680 N.Y.S.2d 782; see generally Matter of Martin G.D. v. Lucille A.F., 35 A.D.3d 1280, 1281, 827 N.Y.S.2d 797). Under the circumstances of this case, we conclude that it is in the child's best interests to permit petitioner to be heard on his claims in the cross petition. We note that petitioner has been the child's legal, full-time caregiver and provider since October 2011, and that respondent also recognizes petitioner as the child's biological father ( see generally Matter of Westchester County Dept. of Social Servs. v. Robert W.R., 25 A.D.3d 62, 71, 803 N.Y.S.2d 672; Cleophous P., 299 A.D.2d at 936, 750 N.Y.S.2d 380). We therefore reverse the order, reinstate the cross petition, and remit the matter to Family Court for a hearing on the cross petition before a different judge ( see Matter of James T.H. v. Danielle M. K–R., 48 A.D.3d 683, 683–684, 850 N.Y.S.2d 919).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the cross petition is reinstated, and the matter is remitted to Family Court, Oswego County, for a hearing.