Opinion
No. P–11333 /12.
2013-03-21
In the Matter of a Proceeding for Paternity under article 5 of the Family Court Act RICHARD M., Jr., Petitioner, v. ALEJANDRA H., Respondent.
Heath J. Goldstein, Fresh Meadows, for petitioner. Jeffrey Guerra, Hempstead, for respondent.
Heath J. Goldstein, Fresh Meadows, for petitioner. Jeffrey Guerra, Hempstead, for respondent.
Daniel E. Lubetsky, Jamaica, attorney for child.
JOHN M. HUNT, J.
This paternity proceeding has been referred to this Court by the Support Magistrate in accordance with Family Court Act § 439(b) for a determination as to whether dismissal ofthis paternity petition is required under the doctrine of equitable estoppel ( see, Matter of Marilene S. v. David H., 63 AD3d 949, 950 [2009];Matter of Starla D. v. Jeremy E., 95 AD3d 1605 [2012],lv denied19 NY3d 1015 [2012] ).
.Family Court Act § 439(a) provides, in pertinent part, that “[s]upport magistrates shall not be empowered to hear, determine and grant any relief with respect to issues of contested paternity involving claims of equitable estoppel ... which shall be referred to a judge as provided in subdivision (b) or (c) of this section” (McKinney's Cons Laws of NY, Book 29A, Fam Ct Act § 439, 2013 Cum Ann Pocket Part at 9).
By petition filed pursuant to Family Court Act § 523 on May 30, 2012, Richard M., Jr. alleges that he is the father of Michael Jose M., who was born out-of-wedlock to the respondent, Alejandra H., on July 3, 2008. The petition alleges that the parties engaged in sexual intercourse “during a period of time beginning on or about May 10, 2007 and ending on or about October 1, 2009, and as a result thereof, respondent became pregnant.” The petition further alleges that the mother was “not married” at the time that the child was conceived, and that “no individual has been adjudicated father of this child ... and no individual has signed an acknowledgment of paternity admitting paternity for this child.”
Preliminary proceedings upon the petition were conducted before the Support Magistrate.
The birth certificate for the child Michael Jose M. was submitted to the Magistrate. According to the birth certificate, the child was born on July 3, 2008 to Alejandra H ., and the birth certificate is silent as to the paternity of the child. According to Ms. H., she married Daniel H. on April 20, 2012, but she was unmarried at the time that the child was likely conceived and when the child was born.
The ultimate decision upon the issue of equitable estoppel must be made by a Family Court Judge, but there is no prohibition against a Support Magistrate conducting a preliminary inquiry in order to determine issues such as the parties' intention to appear with counsel, whether counsel should be assigned to an indigent litigant, and whether an attorney for the child should be appointed ( see, Matter of Commissioner of Social Services [Edith S.] v. Victor C., 91 AD3d 417, 418 [2012] ). All of these issues can, of course, be reconsidered by the Judge after the case is referred by the Support Magistrate. In addition, at the preliminary stage of the proceeding, the Support Magistrate may ascertain whether the case actually involves equitable estoppel, which the Magistrate cannot adjudicate, or whether the case involves some other issue, such as the presumption of legitimacy, which is within the jurisdiction of the Support Magistrate to decide ( see, Matter of Bristene B., 102 AD3d 562 [2013] ).
Upon further inquiry, Ms. H. stated that while there is no dispute that Richard M., Jr. is the father of the child, she indicated that her son, who was then four years old, has never had any relationship with Mr. M., and that the child believes that her husband, Daniel H., is his father, as they have lived together and have had a father-son relationship for virtually all of the child's life.
As the mother was unmarried when she gave birth to Michael, the name of the child's biological father would not be included on the child's birth certificate absent an order which adjudicates paternity, or the execution of an acknowledgment of paternity by the parents ( see,Public Health Law § 4135[2] ).
The Support Magistrate proceeded to appoint an attorney to represent the child (Fam. Ct. Act § 249[a]; Matter of Tracy C.O. v. Douglas A.F., 66 AD3d 1390, 1392 [2009];Matter of Darlene L.-B. v. Claudio B., 27 AD3d 564 [2006];Matter of Andrew T. v. Yana T., 74 AD3d 687 [2010], and the case was continued so that the attorney for the child could obtain information and state his position with regard to whether equitable estoppel applied in this case.
Although Mr. H. could have been joined as a respondent in this case in accordance with Civil Practice Law and Rules § 1001(a) ( Juanita A. at 4), the failure to do so here does not require dismissal of the proceeding, as there is no claim that the husband is the child's biological father ( see, Matter of Edward WW. v. Diana XX., 79 AD3d 1181, 1183 [2010] ).
When the proceedings resumed on December 20, 2012 the attorney for the child indicated that he had met with Michael and discussed the child's family situation with him. According to the attorney, he “did not get a clear answer from the child about his relationship with the petitioner.” The attorney further indicated that respondent's husband, Daniel H., was the person who brought Michael to meet with him and based upon counsel's personal observation, “it seems like the child has a relationship” with Mr. H., although counsel “was unable to get an answer from the child of who he considers to be [his] father.”
The case was then referred to this Court for further proceedings and counsel was assigned to the petitioner and the respondent (Fam. Ct. Act § 262). Thereafter, the parties and their attorneys appeared along with the attorney for the child for further proceedings on January 31, 2013. At that time the Court took judicial notice of five prior paternity proceedings filed in Richmond County and Queens County by Mr. M. against Ms. H. between June 22, 2009 and December 15, 2011 ( see, Matter of Anjoulic J., 18 AD3d 984, 985 [2005];Matter of Lane v. Lane, 68 AD3d 995, 997 [2009];Matter of Shirley v. Shirley, 101 AD3d 1391, 1394 [2012] ). All of these prior paternity proceedings were ultimately dismissed without any adjudication upon the merits when Mr. M. failed to appear and prosecute the cases.
The Court then conducted a hearing on the issue of equitable estoppel which had been raised by both the mother and the attorney for the child, in order to determine whether dismissal of this paternity petition was required. Prior to hearing the testimony of the petitioner and the respondent, the parties and the attorney for the child stipulated that Richard M., Jr. is the biological father of Michael Jose M., although the petitioner stated somewhat equivocally that “I hope the child is mine” and he further stated that he “wanted a paternity test” to be certain.
Richard M. testified that he and Alejandra H. had a “very rocky relationship”, and that their relationship ended a month or two after their son was born in July 2008. Mr. M. testified that he was not present at the hospital when Michael was born, although he claimed that he had visited Ms. H. at the hospital prior to the child's birth. According to Mr. M., he was unable to be present for Michael's birth because he had been hospitalized at that time. Mr. M. testified that he first saw Michael at the mother's residence after he had been released from the hospital which was approximately a week following the child's birth. At that time, Ms. H. and Michael were residing in the home of the child's maternal grandmother. Mr. M. testified that he brought gifts for the child on this visit and that the visit ended abruptly when he was asked to leave the home after he engaged in a verbal dispute with the maternal grandmother. According to Mr. M., the only other time that he has ever seen the child was when he showed up unannounced at the home of the maternal grandmother on Christmas Day 2010, and on that occasion the maternal grandmother “slammed the door in my face.”
No genetic testing was ordered at this point of the litigation based upon the mother's judicial admission of petitioner's paternity ( see, Wheeler v. Citizens Telecommunication Co. of NY, Inc., 18 AD3d 1002, 1005 [2005];Rahman v. Smith, 40 AD3d 613, 615 [2007] ), and the need to decide the issue of equitable estoppel prior to ordering such tests ( see,Fam. Ct. Act §§ 418[a]; 532[a]; Matter of Shondel J. v. Mark D., 7 NY3d 320, 330 [2006];Matter of Isaiah A.C. v. Faith T., 43 AD3d 1048 [2007];Matter of Marilene S. at 1036).
Subsequent to Michael's birth and until the end of 2009, a period of 17 months, Mr. H. testified that he telephoned the mother “once or twice” in an attempt to visit his son, but that the mother or grandmother subsequently changed number of the home telephone. Mr. M. also testified that he made attempts to visit Michael “at least five times”, but that he was not allowed access to the child “because of a confrontation” he had with the mother. Mr. M. explained that after visiting Michael soon after the child's birth, the next time he attempted to visit Michael was during the spring of 2009 when he went to the home of the maternal grandmother. According to Mr. M., after he arrived at the grandmother's home he “was told to leave and he went home.”
On another occasion in mid–2010, Mr. M. went to the home of the grandmother and he ended up in an argument with the grandmother and a man who he saw with the mother, who he subsequently learned was Daniel H. According to petitioner, he subsequently learned that Ms. H. was involved in a relationship with Daniel H., although he did not state when or how he acquired that information. In addition, Mr. M. testified that he would send e-mails to Ms. H. on asomewhat regular basis inquiring about Michael and seeking to visit the child. He recalled that on more than one occasion in 2011 and 2012 Ms. H. responded to him and wrote that Mr. H. was the father of her child. According to Mr. M., he did not believe the mother's claim that Daniel H. was the father of the child “because I was with [her] during the nine months of her pregnancy”, which appears to have preceded the mother's involvement with Daniel H.. On other occasions, Ms. H. would reply and would write that Mr. M. “was not capable of being a father to the child”, although neither witness explained the exact meaning of that comment.
Petitioner testified that most of his attempts to visit Michael coincided with holidays and birthdays, and he also indicated that he telephoned the grandmother's residence on four to six different occasions to request that he be allowed to see the child. On one apparently unannounced visit to the grandmother's home, Mr. M. was accompanied “by friends” and on another occasion, he was accompanied “by his father”, but he did see the child on either occasion. Mr. M. recalled that at some point, the mother “changed her telephone number” so that he could not call her or members of her family to request access to the child.
Petitioner claimed that in addition to attempting to visit the child, making telephone calls to the grandmother's residence, and sending e-mails to the child's mother, he also sent multiple text messages to the mother's cell phone. These text messages also inquired about Michael and expressed the desire of Mr. M. to visit with him. Mr. M. testified that he also mailed five letters to the mother at the maternal grandmother's home in 2010, and he also mailed “gifts, clothing, and toys” for his son to the home. Mr. M. also claimed that he mailed a number of letters to the mother at the grandmother's home. Some of these letters contained checks for a sum of money to be used for the child, and at the times that he was working, he usually enclosed $100.00 every two to four weeks for Michael's support. The text messages and letters sent to Ms. H. were ignored, and the checks sent for the support of Michael were never cashed.
Although petitioner was clearly aware that he could employ the process of the Family Court in order to seek to assert his parental rights to the child, when he was questioned why he never followed through on the five prior paternity proceedings, he stated that “I had to work on days cases were dismissed for lack of my appearance”, but he also contradicted himself by stating that he was actually present in court on the day that four of the five prior paternity petitions had been dismissed, but that the case was called and dismissed in absentia after he allegedly informed court personnel of his presence. This testimony is internally inconsistent and incredible and the Court credits the mother's testimony that she appeared in court in response to the summonses served upon her, and that to her knowledge, Mr. M. had not been at court on those days.
Alejandra H. testified that Richard M. is the biological father of her son, Michael Jose M., and that she has no doubt that he fathered the child. Ms. H. conceded that petitioner visited her and Michael a few weeks after the child's birth and that the visit ended when he was asked to leave her home after an argument erupted between him and her mother. Ms. H. further agreed that in the four years since Michael's birth the father had made approximately 15 to 20 attempts to schedule visits with the child, but the requests were made close in time to each other and that “months and sometimes years passed” between the requests to visit the child. Ms. H. estimated that the longest period of time in which she had no contact with petitioner, other than meeting him in court in response to his paternity petitions, was a period exceeding 18 months which occurred in 2009 and 2010.
It is unclear when the mother might have run into Mr. H. in either Richmond or Queens County Family Court, although the court records reflect that Mr. H. was not present when the five previous paternity petitions were dismissed by various Support Magistrates.
In the years since Michael's birth, Ms. H. began a relationship with Daniel H. at the end of 2008 or early 2009, and she and Mr. H. married in April 2012. Additionally, the mother testified that Mr. H. has lived with her and Michael for much of the past four years, since Michael was approximately four months old, and that Mr. H. has acted as a father towards Michael. For example, Mr. H. feeds the child, cares for him, and takes him to medical appointments. According to Ms. H., she informed Mr. M. in or about May 2012 that her husband, Daniel H., had assumed a parental role towards Michael, although she conceded that prior to that conversation she never informed Mr. M. that Mr. H. had assumed the role of father towards Michael.
According to Ms. H., at some point after she married Mr. H. she informed the petitioner that if he wanted to see Michael he would have to “meet with her and her husband prior to visiting.” Ms. H. explained that she imposed this requirement because Mr. M. “was very abusive to me while I was pregnant” and that she felt a need to call the police on occasion.
Ms. H. testified that she recalls Mr. M. sending gifts for Michael in both December 2010 and December 2011. According to Ms. H ., she returned the gifts to petitioner, and she added that petitioner had not offered or provided any financial assistance for Michael, although it was not clear that she would have accepted such assistance had it actually been offered.
Mr. M. did not indicate where he sent the checks he alleges were sent as support for the child. There is no way to know whether these checks, which were apparently never cashed, had actually reached the mother.
At the close of the evidence, counsel for the mother and the attorney for the child argued that Mr. Martinez should be barred from proceeding upon his paternity petition under the doctrine of equitable estoppel. Counsel for the petitioner contended that as there is no dispute that he is the child's biological father, and given his efforts to have a relationship with Michael, this is not a case to which equitable estoppel should be applied.
II
“New York courts have long applied the doctrine of equitable estoppel in paternity and support proceedings. Our reason has been and continues to be the best interests of the child [and][a]lthough it originated in case law, paternity by estoppel is now secured by statute in New York ( seeFamily Court Act § 418[a]; § 532[a] )” ( Matter of Shondel J. v. Mark D., 7 NY3d 321, 326 [2006]; see also, Matter of Debra H. v. Janice R., 14 NY3d 576, 592 [2010],rearg. denied15 NY3d 767 [2010],cert denied––– U.S. ––––, 131 SCt 908 [2011] ).
“An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury. It is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words of conduct, has been misled into acting upon the belief that such enforcement would not be sought” (Nassau Trust Company v. Montrose Concrete Products Corporation, 56 N.Y.2d 175, 184 [1982] [internal citations omitted]; see also, Shondel J. at 326; Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt., L.P., 7 NY3d 96, 106–107 [2006];Matter of Jean Maby H. v. Joseph H., 246 A.D.2d 282, 285 [1998];Marshall v. Pittsford Central School District, 100 AD3d 1498, 1499 [2012],lv denied20 NY3d 859, 2013 N.Y. Slip Op 64339).
Functionally, an “estoppel is a bar which precludes a party from denying a certain fact or state of facts exists to the detriment of another party who was entitled to rely on such facts and had acted accordingly” (Matter of McManus v. Board of Education, 87 N.Y.2d 183, 186–187 [1995];see also, Flushing Unique Homes, LLC v. Brooklyn Federal Savings Bank, 100 AD3d 956, 958 [2012];Matter of Stephen W. v. Christina X., 80 AD3d 1083, 1084 [2011] ).
A
Equitable estoppel may be raised by any party to a paternity or support proceeding, or by the attorney for the child.
Equitable estoppel may be “used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced” ( Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 6 [2010] ), as “[t]he paramount concern in applying equitable estoppel in [paternity] cases has been, and continues to be, the best interests of the child” ( Shondel J. at 326; see also, Juanita A. at 5; Jean Maby H. at 285; Matter of Jose F.R. v. Reina C.A., 46 AD3d 564 [2007];Matter of Smythe v. Worley, 72 AD3d 977, 978 [2010];Matter of Leonardo Antonio V. v. Estate of Joanna B., 82 AD3d 1253, 1254 [2011];Matter of Felix O. v. Janette M., 89 AD3d 1089, 1090 [2011];Matter of Jocelyn J. v. Francois J., 94 AD3d 762 [2012];Matter of Merritt v. Allen, 99 AD3d 1006, 1007 [2012],lv denied20 NY3d 857, 2013 N.Y. Slip Op 61439).
Article 5 of the Family Court Act does not require the filing of an answer in response to a paternity petition (Civil Practice Law and Rules § 3018; s ee, Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act § 523 at 89 [West 2009] ). In the absence of a responsive pleading, there is generally no advance notice provided to the parties or to the court that the defense of equitable estoppel will be asserted in a case. While the lack of notice may create confusion or surprise, no formal motion is required in order to raise the defense of equitable estoppel (Matter of David G. v. Maribel G., 93 AD3d 526 [2012];cf., Matter of Saragh Ann K. v. Armando Charles C., 67 AD3d 537, 537–538 [2009] [putative father filed motion requesting hearing on issue of equitable estoppel] ).
Equitable estoppel is most commonly invoked in three types of situations. First, equitable estoppel may be invoked to prevent a mother from challenging her husband's paternity of a child where the husband and the child have a functioning father-child relationship. Second, equitable estoppel may also be applied to preclude a man claiming to be the biological father of a child from litigating that claim where the child is in an operative parent-child relationship with another man; and lastly, the doctrine may be invoked to prevent a man who has an operative parent-child relationship from denying paternity of the child, generally in an attempt to evade an obligation to provide support for that child ( see, Shondel J. at 327; Debra H. at 593; Juanita A. at 6; Matter of Andre Asim M. v. Madeline N., 103 AD3d 500, 2013 N.Y. Slip Op 01028).
Where equitable estoppel is raised in a paternity or support case, the Court does not consider the equities between or among the involved adults. Instead, “the case turns exclusively on the best interests of the child” ( Shondel J. at 330; see also, Juanita A. at 6; Matter of Tanesha H. v. Philip C., 57 AD3d 403 [2008];Matter of Savel v. Shields, 58 AD3d 1083, 1084 [2009];Matter of Marilyn C.Y. v. Mark NY, 64 AD3d 645, 646 [2009];Matter of Dustin G. v. Melissa I., 69 AD3d 1019, 1020 [2010],lv denied14 NY3d 708 [2010];Felix O. at 1090; Starla D. at 1606).
Equitable estoppel may be invoked against a man who seeks to assert his biological paternity of a child who is living with his or her mother and a biologically unrelated male who has assumed the role of father towards the child. In that instance, equitable estoppel is “used to prevent a biological father from asserting paternity rights when it would be detrimental to the child's interests to disrupt the child's close relationship with another father figure” ( Juanita A. at 6; see also, Matter of John Robert P. v. Vito C., 23 AD3d 659, 661–662 [2005];Matter of Fidel A. v. Sharon A., 71 AD3d 437 [2010];Matter of Edward WW. v. Diana XX., 79 AD3d 1181, 1182–1183 [2010];Matter of Juan A. v. Rosemarie N., 55 AD3d 827, 828 [2008];Felix O. at 1091; David G. at 526; Matter of Rason S.B. v. Alexis H., 101 AD3d 710, 711 [2012];Matter of Cecil R. v. Rachel A., 102 AD3d 545, 546 [2013] ). In other words, estoppel is invoked in order to “protect the status interests of a child in an already recognized and operative parent-child relationship” ( Shondel J. at 327 [citation omitted]; see also, Matter of Lorie F. v. Raymond F., 239 A.D.2d 659, 660 [1997];Matter of Greg S. v. Keri C., 38 AD3d 905 [2007];Matter of Antonio H., 51 AD3d 1022, 1023 [2008];Dustin G. at 1020; Marilyn C.Y. at 646; Mark T. v. Joyanna U., 70 AD3d 1068, 1070 [2010];Stephen W. at 1085–1086).
B
Imposition of an estoppel in these circumstances is based upon the assumption that maintaining the child's relationship with the person who has assumed the role of father towards the child is more significant than the child's right to know the identity of his or her biological father (Matter of Greg S. v. Keri C., 38 AD3d 905, 906 [2007];Tracy C.O. at 1392). It is also based upon the assumption that a child would be psychologically harmed or traumatized by the disruption of the relationship that the child has with the man believed by the child to be his or her father (Purificati v. Paricos, 154 A.D.2d 360, 362;Matter of Luis S. v.. Zoraida L., 38 AD3d 377 [2007];Felix O. at 1091).
While it has been stated that a court does “not need psychological evidence nor [does] it need to interview the child to support [a] conclusion that [a] child would be traumatized by dissolving a close father-son relationship” ( Purificati at 362; see also, Felix O. at 1091; Matter of Alan B. v. Mary V., 149 Misc.2d 31, 34 [1990] ), since the applicability of equitable estoppel and the assumptions which underlie that doctrine focus exclusively on the child's best interests, there would seem to be no reason to categorically exclude expert psychological testimony concerning the best interests of a child. “While the testimony of a mental health expert might in any given paternity case involving the child's best interests be helpful, it is not by definition a necessary element of proof” ( Luis S. at 377; see also, Matter of Boyles v. Boyles, 95 A.D.2d 95, 100 [1983] ). The decision to allow such evidence should rest with the trial court and it should be made on a case-by-case basis.
C
Based upon the evidence adduced at the hearing, the Court concludes that petitioner should be estopped from litigating this paternity petition and that the petition should be dismissed. The child Michael has an operative and ongoing parental relationship with Daniel H., his step-father, for close to four years, and there is no parental relationship with petitioner.
The imposition of an estoppel in this case may be inequitable from the perspective of the petitioner, as dismissal of the petition will leave the issue of the true paternity of Michael legally unresolved, and Mr. M. will be unable to seek judicial intervention to assert rights to visit Michael or to seek custody of the child unless he can establish that extraordinary circumstances exist, as a non-parent such as petitioner standing to petition for custody or visitation of the child over the objection of the mother (Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 144 [1987];Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 656–657 [1991];Debra H. at 597; Gulbin v. Moss–Gulbin, 45 AD3d 1230, 1231 [2007],lv denied10 NY3d 705 [2008];Matter of Hayley PP., 77 AD3d 1133, 1135 [2010],lv denied15 NY3d 716 [2010];Matter of Palmatier v. Dane, 97 AD3d 864, 865 [2012] ).
While the record suggests that there has been frustration of, and interference with, the efforts of petitioner to attempt to develop a relationship with Michael, that factor cannot be taken into account in the context of this paternity proceeding. The record also indicates that petitioner has not been consistent in his attempts to develop a relationship with Michael, an observation which applies to his communication with the mother and his prior attempts to utilize the judicial process to obtain an adjudication of paternity. Had he followed through with respect to one of the previously filed paternity petitions, the result might possibly have been different. While the result here may be particularly harsh insofar as petitioner is concerned, it is the result required by controlling precedent.
Accordingly, it is hereby
ORDERED, that the paternity petition filed by Richard M., Jr. is hereby dismissed with prejudice for the reasons stated herein.
This constitutes the decision, opinion, and order of the Court.