Opinion
13150.
10-09-2014
In re KERRY ANN P., Petitioner–Respondent, v. DANE S., Respondent–Appellant.
Andrew J. Baer, New York, for appellant. Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Andrew J. Baer, New York, for appellant.
Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
TOM, J.P., FRIEDMAN, FEINMAN, GISCHE, KAPNICK, JJ.
Opinion Order of filiation of the Family Court, Bronx County (Peter Passidomo, J.), entered on or about July 16, 2013, which denied respondent's request for genetic marker testing and declared him to be the father of the subject child, Kymanie S., unanimously affirmed, without costs. The evidence supports the Family Court's finding that the presumption of legitimacy was overcome based on the mother's testimony that she and her ex-husband, although still married at the time of the subject child's birth, had been separated for several years, and that she was in an exclusive sexual relationship with respondent during the relevant period prior to the child's birth (see Matter of Bristene B., 102 A.D.3d 562, 959 N.Y.S.2d 131 [1st Dept.2013] ). The court's determination that this testimony was “credible” is entitled to great weight (id. ).
The evidence presented at the hearing established that the six-year-old child considers respondent to be her father, she misses visiting with him, and has formed a familial bond with several of his relatives, including his two other children whom she identified as her brother and sister (see Matter of Commissioner of Social Servs. v. Victor C., 91 A.D.3d 417, 418, 936 N.Y.S.2d 149 [1st Dept.2012] ). It further established that she calls him “daddy,” he introduced her to relatives as his daughter, and he did not dissuade her from forming relationships with his children and other relatives. Thus, the court properly determined that the best interests of the child require that respondent be equitably estopped from denying paternity (see Glenda G. v. Mariano M., 62 A.D.3d 536, 880 N.Y.S.2d 18 [1st Dept.2009], lv. denied 13 N.Y.3d 708, 2009 WL 3350436 [2009] ).