Summary
In Queal v. Queal (179 A.D.2d 1070), the husband, with no reason to believe that he was not the child's father, challenged paternity six years after the divorce when he learned that the mother, who had deliberately concealed the child's parentage, had declared that he was not the father.
Summary of this case from Richard B. v. Sandra B.BOpinion
January 31, 1992
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Denman, P.J., Callahan, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Plaintiff appeals from an order denying his application to reopen and modify a 1983 divorce decree and settlement agreement in order to eliminate plaintiff's obligation to support his putative daughter. Plaintiff sought relief on the ground that he is not in fact the father of the child, as evidenced by defendant's assertions to that effect and by HLA tests excluding him as the father. In denying plaintiff's application, the court held that the doctrine of equitable estoppel and considerations of public policy barred plaintiff from challenging his paternity of the child six years after the divorce.
We conclude that plaintiff is not foreclosed from challenging paternity. The common-law irrebuttable presumption of legitimacy long ago was "exploded" "`on account of its absolute nonsense'" (Matter of Findlay, 253 N.Y. 1, 7). As currently formulated, the presumption of legitimacy, although still "one of the strongest and most persuasive known to the law" (Matter of Findlay, supra, at 7), is rebuttable by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy (see, Family Ct Act § 531; Matter of Jeanne C. v. Peter W.D., 134 A.D.2d 779, 781, lv dismissed 71 N.Y.2d 994; Matter of Crane v. Battle, 62 Misc.2d 137, 138-139; see generally, 46 N.Y. Jur 2d, Domestic Relations, §§ 579, 581). Although the policy considerations underlying the presumption of legitimacy are significant, they should not foreclose plaintiff from challenging paternity in the circumstances of this case.
Additionally, we conclude that plaintiff is not equitably estopped from challenging paternity. Although plaintiff did not question his paternity during the marriage, throughout the divorce proceedings, or for six years thereafter, plaintiff did not mislead anyone, but rather was misled by defendant, who concealed the child's parentage throughout that period. Immediately upon learning that the mother was declaring that he was not the father of the child, plaintiff started these proceedings and obtained a court order for HLA testing of all parties. In the circumstances presented, plaintiff is not estopped.