Opinion
November 13, 1998
Appeal from the Livingston County Family Court, Cicoria, J. — Vacate Order.
Present — Green, J. P., Wisner, Pigott, Jr., Balio and Fallon, JJ.
Order unanimously affirmed without costs. Memorandum: Family Court properly granted petitioner's motion to vacate an order of filiation entered based upon respondent's admission of paternity with respect to petitioner's daughter. The parties were never married and are no longer seeing each other, and respondent has been excluded as the father of the child by HLA blood tests. The court properly refused to determine that petitioner is equitably estopped from challenging the prior order. Where an order of filiation is challenged, "it is the child's best interests which are of paramount concern" ( Matter of Louise P. v. Thomas R., 223 A.D.2d 592, 593; see also, Matter of Matthew T. S. v. Angela W., 242 A.D.2d 969). The record supports the court's findings that respondent had not established, a strong "relationship with the child and that respondent had been absent from the child's life for long intervals while respondent was on the road with a band, incarcerated, or in a drug rehabilitation program. Given that the child was only three years old at the time of the hearing, the court did not abuse its discretion in failing sua sponte to appoint a Law Guardian for the child ( see, Lee v. Halayko, 187 A.D.2d 1001, 1002). Finally, nothing in this record warrants a departure from the prohibition against annulling child support arrears that accrued before petitioner's motion ( see, Matter of Commissioner of Social Servs. [Barbara A.] v. Gregory B., 229 A.D.2d 801, 802; cf., Matter of Reynolds v. Oster, 192 A.D.2d 794, 795).