Opinion
188/2016
04-12-2017
Shu Jun Zhu, Plaintiff, v. Bin Pan, Defendant.
Attorney for Plaintiff: Yimin Chen Attorney for Defendant: Aihong You
Attorney for Plaintiff: Yimin Chen Attorney for Defendant: Aihong You Elisa S. Koenderman, J.
Plaintiff and Defendant were married on August 8, 2011. On May 20, 2012, Plaintiff gave birth to the child, L.P. On April 2, 2015, Plaintiff filed for divorce, at which time L.P. was living with his maternal grandparents in China. In September 2015, the court granted Defendant's request to order Plaintiff to have the child returned to New York. After L.P. was returned in July 2016, the court granted Defendant's request for visitation with the child and, in January 2017, ordered Defendant to pay temporary child support. Defendant now moves for an order directing that L.P. be tested to determine his paternity, which Plaintiff and the attorney for the child oppose. The court held a hearing on March 15, 2017 and March 20, 2017, at which Defendant and Plaintiff testified. Pursuant to the following analysis, Defendant's motion is denied.
The supervised visits have not yet been scheduled.
The credible testimony adduced at the hearing establishes that Plaintiff and Defendant were married on August 8, 2011, shortly after Plaintiff arrived in New York from China. They had sexual intercourse for the first time a few days before they were married. Plaintiff subsequently learned that she was pregnant and Defendant accompanied her to doctor's appointments. L.P. was born on May 20, 2012 and Defendant is listed as the father on the birth certificate.
Plaintiff, Defendant and L.P. lived together as a family until April 2014. During that time, they went on outings in New York and took family photographs. In September 2013, they went to China to visit Plaintiff's parents. At a Shanghai restaurant to celebrate the Chinese Moon Festival, they took a family photograph with Plaintiff's parents, grandparents and other relatives. In 2012 and 2013, Plaintiff and Defendant listed L.P. as a dependent on their jointly filed federal income tax returns. In April 2014, Plaintiff and Defendant sent L.P. to China to live with Plaintiff's parents for five years. While L.P. was in China, Plaintiff and Defendant would regularly FaceTime with him. In December 2014, Defendant filed an affidavit in support of Plaintiff's application to become a lawful permanent resident of the United States. In it, he states that Plaintiff "is the mother of my (our) child. We have the most beautiful son in the world, and I would not let anything hurt him." Additionally, Defendant identified L.P. as his child on his net worth statement filed in the instant action in March 2016. During the summer of 2014, Defendant stopped FaceTiming with L.P. Plaintiff claims that Defendant had a physical altercation with another man with whom Defendant believed Plaintiff was having an affair, which caused Defendant to disengage from L.P. Defendant claims that Plaintiff prevented him from having contact with L.P. In any event, it is undisputed that Defendant has not seen or spoken to L.P. since the summer of 2014.
The presumption that a child born during marriage is the biological product of the union is "one of the strongest and most persuasive known to the law" (Matter of Findlay, 253 NY 1, 7 [1930]; see Walker v Covington, 287 AD2d 572 [2d Dept 2001]; Fung v Fung, 238 AD2d 375, 375-376 [2d Dept 1997]). Nevertheless "the presumption does not consecrate as truth the extravagantly improbable" (id. at 8). In other words, the presumption is not "intended to suppress the truth and perpetuate a falsehood" (Constance G v Lewis L, 119 AD2d 209, 211 [2d Dept 1986] [internal citations omitted]). Rather, the presumption yields to "the sway of reason" and may be rebutted (Findlay, 253 NY at 7). Hence, the presumption prevails "unless common sense and reason are outraged by a holding it abides" (id.; see Constance G, 119 AD2d at 211). Clear and convincing evidence which excludes the husband as the father or otherwise tends to disprove the legitimacy of the child rebuts the presumption of legitimacy (see Walker, 287 AD2d at 572; Fung, 238 AD2d at 375-376). Where the presumption is rebutted, the court has authority to order a paternity test (see id. at 572-573; Fung, 238 AD2d at 376). Regardless, a party may invoke equitable estoppel as a defense to preclude the test (see id.; Fung, 238 AD2d at 376).
Equitable estoppel prohibits a person from asserting a claim that would prejudice another where he has led that other person to reasonably believe that he would not do so (see Juanita A v Kenneth Mark N, 15 NY3d 1, 5 [2010], citing Shondel J v Mark D, 7 NY3d 320, 326 [2006]). The law imposes equitable estoppel as a matter of fairness (see id.). Thus, where a man represents himself to be a child's father and it serves the child's best interests, equitable estoppel prevents him from denying paternity (see id., citing Shondel J, 7 NY3d at 326; see also Derrick H v Martha J, 82 AD3d 1236, 1238 [2d Dept 2011]). Equitable estoppel thereby protects "the status interests of a child in an already recognized and operative parent child relationship" (Shondel J, 7 NY3d at 327). The paramount concern is the best interests of the child (see Derrick H, 82 AD3d at 1238; Walker, 287 AD2d at 572-573; Fung, 238 AD2d 376).
A husband must overcome the presumption of legitimacy as well as equitable estoppel to obtain a paternity test of a child born during marriage. Mere proof that the wife engaged in adultery is insufficient to rebut the presumption (see Constance G, 119 AD2d at 211). Indeed, where "husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer" (Findlay, 253 NY at 8). Proof of the wife's adultery in conjunction with conclusive proof of the husband's nonaccess (see Family Ct Act § 531), however, will suffice to rebut the presumption (see Constance G, 119 AD2d at 211 [evidence of "recurrent acts of intercourse" between the wife and another man coupled with "corroborated and unshaken proof negating access" by the husband refuted the presumption]).
Where the husband rebuts the presumption of legitimacy and has no relationship with the child, equitable estoppel will not preclude a paternity test (see Michaleas v Michaleas, 136 AD3d 616 [2d Dept 2016]). For example, where uncontroverted evidence established that the wife had been in a sexual relationship with another man during the time that the three-year-old child was conceived; that the wife told the husband he was not the father; and that the husband had no relationship with the child, equitable estoppel did not bar genetic testing (id.). Similarly, where the husband filed for divorce shortly after learning of his pregnant wife's adulterous affairs and immediately disavowed paternity of the child, equitable estoppel should not have prevented a blood test (Murtagh v Murtagh, 217 AD2d 538, 539 [2d Dept 1995]).
On the other hand, the husband's unsubstantiated claims that his wife had committed adultery and repeatedly told him that he was not the child's father failed to rebut the presumption of legitimacy (Fung, 238 AD2d at 376). Moreover, because the husband was listed on the birth certificate, "consistently held himself out as the child's father," and waited almost a year and a half before challenging paternity, he was equitably estopped from doing so (id.). Indeed, it was not in the child's best interests to order a blood test which "would have the potential to brand the child illegitimate without settling the issue of paternity" (id.). Comparably, in light of the presumption of legitimacy, and where the husband's surname was on the child's birth certificate; the child was registered in school under that name; and the husband waited four years to contest paternity, his paternity petition was properly dismissed under equitable estoppel (David L v Cindy Pearl L, 208 AD2d 502, 504 [2d Dept 1994]).
As here, the husband raised the issue of paternity for the first time in the divorce proceeding (Fung, 238 AD2d at 376). --------
Here, Defendant presented no evidence that Plaintiff engaged in sexual intercourse with anyone other than himself during the time that L.P. was conceived. Moreover, Defendant consistently presented himself as L.P.'s father in a myriad of ways. L.P.'s birth certificate identifies Defendant as his father. Defendant declared L.P. as his dependent on his federal income tax returns. Defendant refers to L.P. as the "most beautiful son in the world" on his affidavit in support of Plaintiff's application for lawful permanent residency. Defendant identifies L.P. as his child on his net worth statement. Defendant lived with Plaintiff and L.P. as a family for almost two years before L.P. went to live in China. During that time, they went on outings, took vacation and posed for family pictures. Moreover, most recently, Defendant moved the court to order Plaintiff to have L.P. returned to New York and to allow Defendant to visit with him.
Consequently, Defendant has failed to rebut the presumption that L.P. is his legitimate child. In any event, he is equitably estopped from denying paternity. Regardless of whether or why it was interrupted, Defendant established a parent-child relationship with L.P., which is in the child's best interests to protect. Specifically, it would not benefit L.P. to order a genetic test which could brand him as illegitimate without resolving his paternity (see Fung, 238 AD2d at 476). Accordingly, Defendant's motion for a paternity test is denied.
This constitutes the decision and order of the court. Dated: April 12, 2017 Queens, New York Elisa S. Koenderman, ASCJ