Opinion
No. XXXXX.
2012-08-3
In the Matter of a Paternity Proceeding SAMANTHA T., Petitioner v. JEFFREY S.K., Tonya M.C., Respondents.
Darryl Bloom, Esq., Public Defender's Office, Olean, for the Petitioner. Jessica Anderson, Esq., Southern Tier Legal Services, Olean, for the Respondent Jeffrey S.K.
Darryl Bloom, Esq., Public Defender's Office, Olean, for the Petitioner. Jessica Anderson, Esq., Southern Tier Legal Services, Olean, for the Respondent Jeffrey S.K.
Gerald J. Vella, Esq., Springville, for the Respondent Tonya M.C.
Schavon Morgan, Esq., Machias, attorney for the Child.
LARRY M. HIMELEIN, J.
Plaintiff Samantha T was 16 when she gave birth to Bentley CT on July 25, 2010. The biological father is either a Tim M who lives in Indiana or Randy S, who is incarcerated in Michigan. Neither has any knowledge of the child.
About four and one-half months into the pregnancy, petitioner met respondent, Jeffrey K, then 17, online and continued to correspond with him for several months. Approximately two weeks before giving birth, petitioner and her mother drove from Michigan to Gowanda, New York, picked up respondent, and returned to Michigan.
On July 26, 2010, the day after the child was born, both parties subscribed and sworn to an “affidavit of parentage” which listed respondent as the father. Petitioner's mother was present when this was done. In September 2010, the parties were thrown out of the Michigan residence, where they had been living with petitioner's parents. Respondent's father then drove to Michigan, picked up the parties and the child, and returned to New York. To allow petitioner to attend school in New York, her mother relinquished custody of petitioner to respondent's mother, Tonya. From October 2010 through April 2012, the parties and the baby resided with respondent's parents in New York. During that time, petitioner was an honor student and completed her junior year of high school.
On May 27, 2011, Tonya filed a custody petition, joined in by both parties, which sought joint custody to her, petitioner and respondent, with primary placement to Tonya and secondary placement to the parties. On that day, another judge of this court issued such an order.
Petitioner moved out in April of this year and the parties disagree about the reasons:
petitioner claims that respondent was abusive and had sex with another young girl while respondent claims that petitioner has another boyfriend and has sent naked pictures of herself to other boys.
On April 20, 2012, Samantha filed a petition to vacate respondent's acknowledgment of paternity. The petition named both Tonya and Jeffrey as respondents. A hearing was held on June 22, 2012, and the parties have submitted memoranda. The child's lawyer asks the court to reject the memorandum submitted by Tonya's lawyer. However, petitioner named Tonya as a respondent so the court sees no reason to reject her memorandum.
Although Tonya contends that petitioner has not complied with the requirements of Michigan Compiled Law § 722.1011, applicable to revoking an acknowledgment of parentage in that state, it appears that this court, as the child's home state now, has jurisdiction over the instant petition ( see Tamir C v. Christopher Vincent H, 59 AD3d 714, 875 N.Y.S.2d 106 [2d Dept 2009] ). Thus, the applicable law would be that of New York.
Family Court Act § 516–a (b)(i) provides that either signator to an acknowledgment of paternity may file a petition to rescind the acknowledgment within 60 days of signing it. Since this petition was filed 21 months after the acknowledgment, that section is inapplicable.
Family Court Act § 516–a (b)(ii) provides that, once the 60 days has expired, either signator may challenge the acknowledgment “by alleging and proving fraud, duress, or material mistake of fact.” If the party seeking to vacate the acknowledgment proves the fraud, duress or material mistake of fact, the court must order a genetic marker or DNA test unless the court finds it is not in the child's best interests because of equitable estoppel ( Id.).
Only if the moving party satisfies their burden of proving fraud, duress or material mistake of facts does the court consider the best interests/equitable estoppel issue (Demetrius H v. Mikhalia CM, 35 AD3d 1215, 827 N.Y.S.2d 810 [4th Dept 2006]; Santos Ernesto R v. Maria SC, 66 AD3d 910, 887 N.Y.S.2d 265 [2d Dept 2009]; Derrick H v.. Martha J, 82 AD3d 1236, 922 N.Y.S.2d 83 [2d Dept 2011] ).
It has been held that one who signs an acknowledgment of paternity knowing he is not the father does not make a prima facie showing of fraud, duress or material mistake of fact (Felton R v. Gloria P, 63 AD3d 515, 880 N.Y.S.2d 475 [1st Dept 2009] ). There is no reason the rule should not be the same when the mother seeks to vacate an acknowledgment that she also signed knowing that respondent was not the father.
Petitioner's contention that respondent committed fraud when he signed as the father is not, in this court's opinion, what is meant by the statute. The usual situation is where the father is told falsely that the child is his ( see Derrick H v. Martha J, 82 AD3d 1236, 922 N.Y.S.2d 83 [2d Dept 2011]. That did not occur here. Further, petitioner's claim hypocritically ignores the fact that petitioner was equally fraudulent when she signed the acknowledgment.
To establish duress, petitioner had to demonstrate that she was forced to sign the acknowledgment by means of some type of wrongful threat that precluded her from exercising her free will (Jeannette GG v. Lamont HH, 77 AD3d 1076, 909 N.Y.S.2d 222 [3d Dept 2010]; Wimberly v. Diabo, 42 AD3d 599, 839 N.Y.S.2d 822 [3d Dept 2007] ). The only claim here is that petitioner was young and “hormonally and emotionally distressed.” Aside from the complete lack of proof to support this assertion, that is not duress.
Finally, there was no material mistake of fact ( see Derrick H v.. Martha J, 82 AD3d 1236, 922 N.Y.S.2d 83 [2d Dept 2011]; Santos Ernesto R v. Maria SC, 66 AD3d 910, 887 N.Y.S.2d 265 [2d Dept 2009] ). Accordingly, because petitioner has not shown fraud, duress, or material mistake of fact, the court need not reach the best interests issue (Demetrius H v. Mikhaila CM, 35 AD3d 1215, 827 N.Y.S.2d 810 [4th Dept 2006]; Westchester County Department of Social Services ex rel Melissa B v. Robert WR, 25 AD3d 62, 803 N.Y.S.2d 672 [2d Dept 2005] ).
Were the court to reach the issue, it is the child's best interests that are paramount (Savel v. Shields, 58 AD3d 1083, 872 N.Y.S.2d 597 [3d Dept 2009]; Starla D v. Jeremy E, 95 AD3d 1605, 945 N.Y.S.2d 779 [3d Dept 2012]; Shondel J v. Mark D, 7 NY3d 320, 820 N.Y.S.2d 199 [2006] ). On this record, I find that bastardizing this child would clearly not be in his best interests.
Accordingly, the petition is dismissed. Submit order on notice.