Defendant presented HLA test results excluding him as Matthew's father, as well as plaintiff's admission that she may have had another sexual partner at the approximate time of Matthew's conception. While it is presumed that a child born during a marriage is the biological product of the marital union, the presumption may be rebutted by clear and convincing proof excluding the husband as the father or otherwise tending to disprove legitimacy (see, Queal v Queal, 179 A.D.2d 1070). Neither public policy considerations nor equitable estoppel bars defendant from challenging paternity (see, Queal v Queal, supra).
I. Did the courts below err in failing to apply the equitable doctrine of unclean hands in this case involving paternity fraud? ( Levy v Braverman, 24 AD2d 430; Seagirt Realty Corp. v Chazanof, 13 NY2d 282; Verra v Bowman-Verra, 266 AD2d 682.) II. Did the courts below err in applying equitable estoppel in a case involving paternity fraud? ( Matter of Sharon GG. v Duane HH., 63 NY2d 859; Matter of Christopher S. v Ann Marie S., 173 Misc 2d 824; Department of Social Servs. v Dinkins, 110 Misc 2d 673; Matter of Cortland County Dept. of Social Servs. v Thomas ZZ., 141 AD2d 119; Queal v Queal, 179 AD2d 1070.) III. Did the courts below err by failing to consider the rights of the child to have the correct identification of her biological father and to have the benefits which would flow from that? ( Little v Streater, 452 US 1; Rivera v Minnich, 483 US 574; Matter of Brian M. v Nancy M., 227 AD2d 404; Weiss v Weiss, 52 NY2d 170; Pickett v Brown, 462 US 1; Prince v Massachusetts, 321 US 158; Matter of Baby Boy C, 84 NY2d 91; Matter of Emanuel S. v Joseph E., 78 NY2d 178; Troxel v Granville, 530 US 57; Parham v JR., 442 US 584.) IV. Did the courts below err in applying the "best interests" doctrine in assigning paternity to a nonbiological father? ( Matter of Cindy P. v Danny P., 206 AD2d 615; Matter of C.M. v C.H., 6 Misc 3d 361; Matter of Janis C. v Christine T., 294 AD2d 496; Matter of Alison D. v Virginia M., 77 NY2d 651; Matter of Bessette v Saratoga County Commr. of Social Servs., 209 AD2d 838; Matter of David M. v Lisa M., 207 AD2d 623; Matter of John Andrew B. v Dianna Marie McC, 149
Further, respondent's fiancé hopes to adopt the child following his marriage to respondent. Under all of the circumstances, including the undisputed proof that petitioner is not the child's biological father, we conclude that the application of the doctrine of equitable estoppel to prevent petitioner from rescinding his acknowledgment of paternity will not further the child's best interests ( see Matter of Darcie T. v. Robert M.L., 255 A.D.2d 955; see also Matter of Erie County Dept. of Social Servs. v. Greg G., 273 A.D.2d 919; Queal v. Queal, 179 A.D.2d 1070).
Here, we do not disagree with Supreme Court's conclusions that, based on defendant's submissions in support of his motion, neither the presumption of legitimacy nor the principles of res judicata are a bar to testing. Nor do we disagree with Supreme Court that principles of equitable estoppel are not available to plaintiff because she may have concealed the children's parentage for an extensive period of time (see,Queal v. Queal, 179 A.D.2d 1070). That, however, does not end the inquiry, because the principles of the doctrine may be asserted by the Law Guardian on behalf of the children in protecting their best interests (see, Verra v. Bowman-Verra, 266 A.D.2d 682, 683). Despite the existence of "equitable considerations militating in the husband's favor, in the final analysis it is the child's best interests which are paramount" (Richard B. v. Sandra B.B., 209 A.D.2d 139, 143, lv dismissed 87 N.Y.2d 861). Indeed, in its decision, Supreme Court recognized these principles, but nevertheless ordered the testing. We believe that to be error.
In my opinion, the focus should be more on what has taken place during those four years and not just the fact that four years have passed ( see Matter of Ettore I. v. Angela D., supra). In Queal u Queal ( 179 A.D.2d 1070), a similar case to the one at bar, the Appellate Division, Fourth Department, refused to apply equitable estoppel and permitted HLA testing even though the child was born in wedlock and the petitioner waited six years to contest paternity, since he began the proceeding as soon as he learned of his wife's infidelity ( cf., Matter of Vito L. v. Filomena L., supra; Richard B. v. Sandra B.B., 209 A.D.2d 139). In the case at bar, the appellant, in less than a year after, becoming suspicious of Aamir's mother, obtained a DNA test, stopped seeing Aamir, and moved to vacate the filiation order.
. Evidence that plaintiff falsely advised defendant of the results of a prenatal paternity test that was never performed does not strongly indicate that defendant is not the child's father ( cf., Elizabeth A. P. v. Paul T. P., 199 A.D.2d 1030; Queal v. Queal, 179 A.D.2d 1070). In view of the strong presumption of legitimacy ( see, Matter of Findlay, 253 N.Y. 1, 7; David L. v. Cindy Pearl L., 208 A.D.2d 502, 503) and proof that the parties had sexual relations during the period of probable conception ( see, Fung v. Fung, 238 A.D.2d 375; Vito L. v. Filomena L., 172 A.D.2d 648, 651), plaintiff's misrepresentation does not warrant vacatur of the divorce judgment on the ground of newly discovered evidence ( see, CPLR 5015 [a] [2]).
In reaching its determination that equitable estoppel does not bar an untimely disclaimer of paternity, the IAS Court relied on two cases which are, in our view, factually distinguishable. 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. Here, in contrast, the father, in signing the separation agreement despite his admitted doubts about paternity and serious allegations in the complaint, by word and deed misled the wife into believing that he would not pursue the issue of paternity and would abide by the terms of the agreement.
Memorandum: Supreme Court did not abuse its discretion in denying plaintiff's motion for relief from those portions of the divorce judgment reciting that the child, Brittany, is born of the parties' marriage and directing plaintiff to provide child support. Plaintiff did not raise the issue of paternity until nearly two years after the divorce was final (cf., Cheryl B. v. Ronald B., 213 A.D.2d 1041 [decided herewith]), and his unsubstantiated assertions and speculation concerning defendant's blood type are insufficient to support his challenge to the paternity of the child (see, Matter of Beaudoin [Patricia B.] v. Robert A., 199 A.D.2d 842, 844; Matter of Rosa v. Diaz, 136 A.D.2d 512, 514; cf., Elizabeth A.P. v. Paul T.P., 199 A.D.2d 1030; Queal v. Queal, 179 A.D.2d 1070).
Present — Callahan, J.P., Green, Fallon, Boomer and Davis, JJ. Order unanimously affirmed without costs (see, Queal v Queal, 179 A.D.2d 1070).
During the hearing, the court had the unique opportunity to observe and evaluate the demeanor and testimony of the witnesses. From the evidence presented, it is apparent that the petitioner kept Jordan's paternity a secret from everyone, including the respondent ( see, e.g, Queal v. Queal, 179 A.D.2d 1070 [4th Dept. 1992] [former husband was not estopped from denying paternity after six years in light of former wife's concealment of child's parentage during marriage and throughout divorce proceedings]). It is also apparent that the petitioner has not been completely forthright with this court about the facts of this case from the very inception.