Opinion
P-00000-00.
Decided on January 17, 2008.
In the instant matter L.D., (hereinafter "respondent") seeks to have the Court order a DNA test to ascertain if he is the biological father of the child N.L.D., DOB 2/25/94, who is the daughter of M.G., (hereinafter, "petitioner").
On March 8, 2006, petitioner filed an application for an Order of Filiation declaring the respondent the father of the child, and a petition seeking an Order of Support that would direct the respondent to pay support for the benefit of the child. On July 27, 2007 the matter was heard before Support Magistrate Kathleen Watson, who reserved decision. The case was then referred to Support Magistrate Patricia Bannon and adjourned to September 5, 2007. On September 5, 2007, respondent did not appear and the matter was adjourned to September 28, 2007. On September 28, 2007, respondent failed to appear, again, and the matter was referred to this Court wherein a warrant was issued for the arrest of the respondent. On October 19, 2007, respondent was returned on the warrant. He was held on bail and the matter was adjourned to October 22, 2007. On October 22, 2007, respondent again made an application for a court ordered DNA test.
Both petitioner and the attorney for the child object to the DNA test on the grounds of equitable estoppel. The respondent maintains that the child has a right to know who her biological father is and cites to the Family Court Act Section 418, which in part notes that if paternity is contested the court shall grant a party's request for a DNA test. However, the Family Court Act, under Article 5, Section 532, and Article 4, Section 418 states in pertinent part: "No such test shall be ordered, however, upon a written finding by the court that it is not in the best interest of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of child born to a married woman".
In the instant matter, it is maintained by the attorney for the child and petitioner that the doctrine of equitable estoppel applies. The doctrine of equitable estoppel "is imposed by law in the interest of fairness to prevent the enforcement of rights which would work [a] fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into action upon the belief that such enforcement would not be sought". (See Maby H. v. Joseph J., 246 AD2d [1998]. See also, Matter of Ettore I. v. Angela D., 127 AD2d 6).
In each instance, when deciding if equitable estoppel should be invoked, it is the child's best interest that is of paramount concern. (See Griffin v. Marshall, 294 AD2d 438). Hence, this Court must first address that issue. Generally, there are four factors that courts look at to see if its in the best interest of the child to apply the doctrine of equitable estoppel to a particular case: (1) the relationship between the parent and the child; (2) has the person held himself out as the parent of the child; (3) the timing of the allegation of non-paternity; and (4) has the parent paid support for the child.
It has been a long standing principle that where there is an established relationship between father and child, the doctrine of equitable estoppel should be invoked. (See In the Matter of Shondel J. v. Mark D., 820 NYS2d 199 {7 NY3d 320} [2006]). In Anonymous v. Anonymous N.Y.L.J. July 8, 1996, at 29, Col. 3, (Nassau County Supreme Court), the mother was estopped from denying the husband's paternity inasmuch as there was a relationship between her husband and her son). In Richard B. v. Sandra B.B., 209 AD2d 139 (1995), the wife was estopped from denying her husband's paternity of their child as there had been a relationship established by her husband with the child. In this matter, the respondent put his name on the child's birth certificate, has had parenting time with the child on a continuous basis and has held himself out as the father of the child. The attorney for the child presents a pattern wherein the respondent has attended events that the child has participated in, such as the child's talent show in first grade, and the child's moving up ceremony from fourth grade. Besides spending parenting time with the child, the child continues to sleep over at the respondent's house such as a weekend in November, and December 2007, and calls respondent's mother "grandma". Respondent gives and/or sends birthday cards to the child and gives her gifts on her birthday and Christmas. The attorney for the child also states that the child has spent Thanksgiving holidays with the respondent and his family as recently as 2004, 2005, and 2006. That the child considers and is considered by respondent's family as one of the family. Moreover, the child also calls respondent's nieces and nephews her cousins. In all the foregoing, the respondent has created a bond with the child, and continues to have a relationship with the child thereby meeting the first two branches of the factors considered by the courts. As to the timing of the allegation of non paternity, it seems curious to this Court that the issue of the child's paternity arises now, when the mother has applied for support. It appears that the respondent is being driven by his pecuniary interest and not the best interest of the child to whom he gave his last name at birth.
The Court also notes that the respondent waited almost thirteen (13) years after he placed his name on the birth certificate and after he had established a relationship with the child to request a DNA test. As stated in Thomas v. Rosasco, 226 AD2d 800 (1996), wherein the court held that a significant time had passed, the "petitioner must proffer more than conjecture that the child[ren] may not be his". Here the respondent merely states that there are other men that could possibly be the child's father. However, he fails to plead non-access to the petitioner at the critical time in question.
For all of the above noted reasons it is
ORDERED that the doctrine of equitable estoppel is invoked against respondent and his application for DNA testing is denied. The matter is referred to Support Magistrate Patricia Bannon for further proceedings on February 1, 2008 at 9:00am.
This constitutes the Decision and Order of this Court.