Opinion
P-07849-08.
Decided May 12, 2009.
Nevarez Nevarez, Juan A. Nevarez, Esq., for Petitioner.
James S. Hinman, Esq., for Respondent Evan H.
Legal Aid Society, by Brian A. Strait, Esq., Attorney for the Child.
Neither the marital presumption nor equitable estoppel bars the admission of a Genetic Marker Test (GMT) determining that Respondent Evan H. is the biological father of the child Mariah F. (d/o/b: -/ — / —). By petition filed June 24, 2008 Petitioner Chanthoan M. seeks a declaration that Respondent is Mariah's father. This case was first heard by a child support magistrate who, upon consent of Respondent, ordered a GMT. According to the GMT report filed September 24, 2008 the probability that Respondent is Mariah's father is 99.97%. The Support Magistrate upon learning that Petitioner is married — and was married at the time of Mariah's birth — referred the case to this Court for determination. Respondent argues that his consent to the GMT was induced since Petitioner failed to disclose that she was married prior to the test. A hearing was held on March 12 and April 13, 2009 with testimony from Petitioner, her husband David F., Respondent and Respondent's parents Janice and Harold H.
A court may deny ordering a GMT based on the presumption of legitimacy of a child born to a married woman or equitable estoppel but only if denial is in the best interests of a child (Family Court Act § 418 [a]; Matter of Shondel J. v Mark D. , 7 NY3d 320 , 329). Thus even though the Support Magistrate ordered the GMT this Court has the authority to disregard its results if it would not be in Mariah's best interests to have Respondent declared her father ( Matter of Shondel J., 7 NY3d at 330).
Respondent argues that Petitioner was not forthright about her marital status and should not be permitted to "reap the benefit from her fraudulent actions." In Matter of Tiffany M.H. v Greg G. ( 273 AD2d 919 [4th Dept 2000]) the court held that a mother could not use fraud or deception by naming only one potential father on a petition and allowing a default order of paternity and child support to be entered. Here Petitioner did not fraudulently indicate that she was currently single; rather her petition alleges that at the time of Mariah's conception she was not married. In any event the Court of Appeals has directed that "the mother's motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served" ( Matter of Shondel J., 73 NY3d at 331). Even applying a presumption of legitimacy, this Court finds as a threshold that, based upon the following facts, it is not in the child's best interests to disregard the GMT report.
Mariah was approximately two years old when Petitioner filed the current petition. David F. testified that he considers himself Mariah's step-father, although Mariah has his last name. He married Petitioner after Mariah was conceived and told staff at the hospital that he was the father only to protect Petitioner from potential condemnation by her Cambodian community arising from giving birth to a child out of wedlock. He testified that he treats Mariah the same way he treats Petitioner's other two children from a prior marriage and that all of Petitioner's children refer to him as "dad."
Petitioner testified that she was an adopted child and never knew her biological mother which caused her psychological pain. She and David F. discussed filing the paternity petition in part so that Mariah would know her biological father and have a relationship with him. Petitioner had a two-year relationship with Respondent and he was both aware and initially pleased that she was pregnant with his child.
Respondent argues that Petitioner's later wild vacillations about the status of her pregnancy and the putative father caused him to doubt her. Yet after Mariah's birth, she visited Respondent's parents on at least two separate occasions — once over Christmas — with each visit lasting at least forty minutes. She testified that Respondent's parents advised her to file a paternity petition as Respondent would not acknowledge paternity of Mariah. Respondent's parents both testified that they were aware of the relationship between Petitioner and Respondent and Respondent told them several times that Petitioner was having his baby. While Mariah's parents acknowledged only two meetings, they testified that Petitioner called them to inform them of Mariah's birth; they first met Mariah when she was approximately 11 months old; and they supplied Petitioner with clothes for Mariah.
Further Respondent did not make a prima facie showing that Petitioner should be equitably estopped from requesting and/or ultimately relying upon the GMT. In both Matter of Shondel J. v Mark D. ( 7 NY3d 320 ) and Matter of Bruce W.L. v Carol A.P. ( 46 AD3d 1471 [4th Dept 2007], lv denied 10 NY3d 707) the courts held that where a man holds himself out to be the father of a child and the child justifiably relies on that representation, he cannot use the results of a GMT determining that he is not the biological father to relieve himself of financial obligations for the child ( see also Matter of Ruby M.M. v Moses K. , 18 AD3d 471 [2d Dept 2005] ["the defense (of equitable estoppel) is generally not available to a party seeking to disavow paternity for the purpose of avoiding child support"]; Matter of Dowed v Munna, 306 AD2d 278 [2d Dept 2003]; Matter of Amy Lynn G. v Jamie B., 14 Misc 3d 1238[A] [Fam Ct, Ontario County 2007]). Rather "[e]quitable estoppel should only be applied when it furthers the best interests of the child" ( Matter of Ruby M.M., 18 AD3d at 472). Respondent has not shown that a determination that he is the father would disturb Mariah's relationship with Petitioner's husband David F. ( see Matter of Ruby M.M., 18 AD3d at 472 [respondent failed to show that a determination that he is the father of the children would disturb the relationship between the children and another potential father figure]).
As both Petitioner and David F. are forthright in their acknowledgment that Respondent is Mariah's biological father and Respondent's parents acquiesce in this knowledge there is no proof to support Respondent's contention that a finding that he is the father would disturb the relationship between David F. and Mariah. Indeed, David F. testified that he treats Mariah the same way he treats his other two step-children. Both Petitioner and David F. testified that they want Respondent to have a relationship with Mariah and Petitioner acknowledges the importance of a child knowing her biological parents. Despite the one incident where police intervention was required in a dispute between Respondent and David F. there is nothing to indicate that the two would not act civilly now to support their respective relationships with Mariah. Crucial, Mariah's attorney asserts that it is in Mariah's best interest to establish paternity and because of Mariah's young age such a determination would not be detrimental.
Neither the marital presumption nor equitable estoppel bars the admission of the GMT. The GMT, showing the probability that Respondent is Mariah's biological father at 99.97%, creates a rebuttable presumption of Respondent's paternity. As Respondent did not adduce evidence to overcome such presumption, the GMT constitutes the requisite clear and convincing proof to declare Respondent's paternity (Family Court Act § 532 [a]; see Matter of Cheryl P. v Theodore D., 217 AD2d 997 [4th Dept 1995]).
NOW, therefore, it is hereby
ORDERED that the results of the Genetic Marker Test filed September 24, 2008 are admissible; and it is further
ADJUDGED AND DECLARED that Evan H. is the father of Mariah F.