Opinion
F-21681-2014
03-10-2017
In the Matter of a Proceeding Under Articles 4 & 5 of the Family Court Act, Tanika H., Petitioner, v. Travaris M., Sr., Respondent. In the Matter of a Proceeding Under Articles 4 & 5 of the Family Court Act, Travaris M., Sr.,Petitioner, v. Tanika H.,Respondent.
The attorney for Father is Henry James Joseph, Esq., Gilmer Law Firm, 26 Court St., Brooklyn, NY 11201 (718) 624-1400; for mother: Renata Weissman, Esq., 3044 Ocean Ave., Brooklyn NY (718) 865-8084; and the Attorney for the Child is Mara Wishingrad, Esq. from the Children Law Center (718) 522-3333.
The attorney for Father is Henry James Joseph, Esq., Gilmer Law Firm, 26 Court St., Brooklyn, NY 11201 (718) 624-1400; for mother: Renata Weissman, Esq., 3044 Ocean Ave., Brooklyn NY (718) 865-8084; and the Attorney for the Child is Mara Wishingrad, Esq. from the Children Law Center (718) 522-3333.
Papers Numbered Summons, Petition, Affidavit & Exhibits Annexed 1 Court Proceedings Transcripts, Exhibits & File 2 Summation by Petitioner 3 Summation by Attorney for the Child 4 Summation by Respondent 5
Following the evidentiary hearing had before the undersigned, upon the foregoing papers and for the following reasons, the motion by Petitioner Travaris M., Sr. (hereinafter "Father"), for the vacatur of an Acknowledgement of Paternity, is denied and his proceeding is hereby dismissed.
I.
The following facts have been gathered from the credible testimonial and documentary evidence heard on December 15, 2016 before the undersigned. Prior to 1998, the young Respondent Tamika H. ("Mother") had a high school boyfriend, one Leonard S. That affair ended and, sometime in 1999, Father and Mother began their romantic relationship, during which time they had unprotected sexual relations outside of marriage. Around December 1999, however, Mr. S. reappeared in Mother's life rekindling a one-night stand with her. Then, in March 2000, Mother informed Father that she was pregnant while simultaneously confessing to him her past rendezvous with Mr. S. Although Father was disappointed and questioned Mother as to the exact dates of her tryst, they spoke about the incident, stayed together at home and "made love that same night." They "never broke up because of" that infidelity, remaining together throughout Mother's pregnancy, taking care of each other and attending Lamaze Method classes together. According to Mother, she and Father were young, in love and "never dwelled on what had happened," but "were hoping for the best."
Lamaze technique and classes "increase a mother's confidence in her ability to give birth; classes help pregnant women understand how to cope with pain in ways that both facilitate labor and promote comfort, including relaxation techniques, movement and massage" (https://en.wikipedia.org.Lamaze technique). --------
The subject Child of these proceedings, named after Father, was born out-of-wedlock to Mother on October 20, 2000 in Rochester, New York. Within days, on October 22, 2000, Mother and Father both executed an Acknowledgment of Paternity at Rochester General Hospital recognizing him as the Child's father. Specifically, the Acknowledgment of Paternity, which was filed with the City Registrar on November 6, 2000, states twice in capital letters above the signature lines:
I understand that signing this Acknowledgment will establish the paternity of the Child and have the same force and effect as an Order of Filiation entered after a court hearing including an obligation to provide support for the Child, except that
only if this Acknowledgment is filed with the registrar where the birth certificate is filed will the Acknowledgment have such force and effect with inheritance rights. I have received written and oral notice of my legal rights and the consequences of signing the Acknowledgment of Paternity, and I understand what the notice states. A copy of the written notice has been provided to me. I certify that the above information is true.This Acknowledgment was witnessed and signed by two witnesses unrelated to Mother or Father. The parties apparently remained together for a period of time after the Child's birth.
However, questions eventually arose in their minds as to Father's paternity triggered by the Child's changing physical features. As a result, when the Child's was eight months old, on June 13, 2001, Father applied for and received a DNA Parentage Test Report - prepared by DNA Diagnostic Center in Ohio - excluding him as the biological father of the Child. The parties eventually separated when Mother moved to Buffalo and thereafter to New York City. During the ensuing years, Father affirmed that he "maintained a friendship with [Mother] and periodically would call her to check on her and the Child," especially during his birthdays, graduations and other important events, "occasionally provid[ing] funds for her" and the Child. This continued until the Child was nine years-old, when Mother was visiting Rochester and they apparently revealed the truth of his paternity to the Child so that "he should understand why [Father] was not really in his life." Never did Father institute any formal, legal proceedings challenging his paternity or sought to vacate his 2000 Acknowledgment of Paternity.
By Summons and Petition dated August 18, 2014, Mother commenced the instant Support proceeding against Father in Kings County Family Court, seeking his payment of child support, health insurance and other relief for the Child. The matter appeared on several occasions before Support Magistrate Nicholas J. Palos with Father either failing to appear or appearing telephonically without permission. By Temporary Order of Support dated December 8, 2014, the Magistrate ordered Father, upon his default, to pay the sum of $600 monthly to Mother as Child support payable via income withholding through the NYS Child Support Collection Unit. It was only during the pendency of the support proceedings when Father, in May 2015, first informally raised the defense of lack of paternity of the Child.
Almost one year and five months after the commencement of the Support Proceeding, by Summons and Petition dated January 7, 2016, Father first petitioned to vacate the executed Acknowledgment of Paternity, alleging that it has been more than 60 days since the Acknowledgment was signed, but that it should be rescinded because Mother had perpetrated a fraud as to the reality of his paternity of the Child, and that he had taken a private DNA Parentage Test demonstrating that he was in fact excluded as the Child's father as early as 2001. In support of his Motion, the Father attached an Addendum of the parties' history and the DNA test results, arguing that he had only consented to the Acknowledgment of Paternity more than 16 years ago because he relied upon Mother's "lie" that he was the Child's father. Tellingly, Father's Petition contained no explanation as to why he waited all those 16 years to challenge his paternity of the Child.
In opposition to the Petition, Mother's counsel argued that Father had improperly waited an inordinately long period of time to challenge his paternity, and that he had "participated actively and held himself out to be the father" despite the 2001 DNA test results. Faced with the extraordinary temporal distance elapsed since the execution of the Acknowledgment of Paternity, the Magistrate referred the matter to a Family Court Judge to hear and determine the matter and any appropriate equitable estoppel defenses available to the Child. The Children Law Center was immediately appointed to represent the Child's best interests (see Richard D. v Wendy P., 47 NY2d 943, 945 [1979]; Matter of Darlene L.-B. v Claudio B., 27 AD3d 564 [2nd Dept. 2006]). II.
Following assignment of this matter to the undersigned, on December 15, 2016, the Court immediately commenced an evidentiary hearing on the issue of whether the Acknowledgment of Paternity was procured by any fraud, mistake or misrepresentation made by Mother regarding Father's paternity. At the hearing of the Vacatur Petition, both Father and Mother were the only witnesses to testify as the abovementioned facts. However, it was Mother who testified throughout the proceedings in a more credible, plausible and consistent manner than Father, especially with respect to the chronology of the events, including her romantic relationships, disclosures during her pregnancy and notification to Father.
In the most crucial part of the testimony, Father acknowledged on direct examination that Mother did inform him about her tryst with Mr. S. during the relevant time period by testifying that Mother confessed during her pregnancy that she had "had other sexual partners in the year 2000" prior to conception and that she believed that the Child "could not" be Mr. S.'s son. On cross examination, Father conceded that Mother never forced, threatened or coerced him into signing the Acknowledgment, and twice answered in the affirmative that Mother had "admitted [to him] that she had sexual relations with other partners" after informing him of the pregnancy. Somewhat contradictorily, Father then tried to rehabilitate his testimony by stating on re-direct examination that Mother had only "disclosed to [him] that she had had unprotected intercourse with Mr. Spears" or anyone else in January 2000 "after she gave birth." He again conceded on cross examination, however, that they "had already discussed that Mother had other partners around the time of [the Child]'s conception" before he "signed the Acknowledgment of Paternity" [emphasis supplied].
At the conclusion of the hearing, the Court afforded counsel an opportunity to submit written summations by February 7, 2017. In his Summation, Father argues that the Court should vacate the Acknowledgment of Paternity, without the necessity of an additional equitable estoppel hearing, because he merely consented to his paternity on reliance of the Mother's misrepresentation and material mistake of fact that he was the Child's biological father. Relying on the cases of Matter of Sidney W. v Chanta J. (112 AD3d 950 [2nd Dept. 2013]) and Matter of Derrick H. v Martha J. (82 AD3d 1236 [2nd Dept. 2011]), Father maintains that Mother's lie about him being the biological father of the Child cannot be countenanced and requires an outright vacatur. According to Father, the fact that he waited over 16 years to challenge his "paternity [wa]s of no moment" because his paternity only "became an issue" when Mother filed for child support against him in 2014. "Prior to that, there was no issue, there was no need to vacate the Acknowledgment of Paternity."
In opposition, Mother and the Attorney for the Child contend that the Court should decline to vacate the Acknowledgement of Paternity because Father has failed to sufficiently establish any fraud, misrepresentation or any misconduct by Mother. According to the Attorney for the Child, Father was not coerced, forced or threatened into signing the Acknowledgment, was aware of Mother's dalliances with other partners during their relationship at the time of conception, and had improperly waited for over 16 years to challenge the same. She reiterated that Father had acquiesced and held himself out to be the now 16-year-old Child's father, visited with him and has provided for his support for several years. This Court agrees with Mother and the Attorney for the Child. III.
Pursuant to Family Court Act § 516—a(b)(ii), a challenge to an acknowledgment of paternity "after the expiration of sixty days of [its] execution" may only be based upon "fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment" (see Matter of Derrick H. v Martha J., 82 AD3d 1236; Matter of Demetrius H. v Mikhaila C.M., 35 AD3d 1215, 1216 [2nd Dept. 2006]; Ng v Calderon, 6 AD3d 255 [1st Dept. 2004]). To establish fraud, a petitioner must show that he or she "justifiably relied on the respondent's fraudulent statements or representations at the time the acknowledgment of paternity was signed" (Matter of Joshua AA. v Jessica BB., 132 AD3d 1107, 1108 [3rd Dept. 2015]; see Matter of Demetrius H. v Mikhaila C.M., supra at 1216; see generally Gaidon v Guardian Life Ins. Co., 94 NY2d 330, 348 [1999] ["Fraud has generally been defined as behavior involving intentional false representations and other connotations of scienter such as willfulness, knowledge, design and bad faith"]). To succeed in a fraud claim, "he had to show that he was not on notice, actual or constructive, of the wife's fraud in misleading him as to his nonpaternity" (Richard B. v Sandra B., 209 AD2d 139, 144 [1st Dept. 1995]).
Similarly, in order to establish a "material mistake of fact, a party must demonstrate that such mistake 'was truly material — i.e., substantial and fundamental to the nature of the [acknowledgment] — so as to entitle a party to void that document'" (Matter of Wimberly v Diabo, 42 AD3d 599 [3rd Dept. 2007]). Where an individual challenging an acknowledgment of paternity after 60 days "fails to meet the burden of proof on the issue of fraud, duress, or material mistake of fact, the court need not order a G[enetic] M[arker] T[est] to determine the child's paternity" or conduct an equitable estoppel hearing (Matter of Westchester County Dept. of Social Servs. v Robert W.R., 25 AD3d 62, 70; see Matter of Demetrius H. v Mikhaila C.M., supra; Matter of Darlene L.-B. v Claudio B., 27 AD3d at 565).
Applying the foregoing legal principles to the matter at bar, Father has failed to meet his burden for the vacatur of the Acknowledgment of Paternity he voluntarily executed in 2001 (see Family Court Act § 516—a[b][ii]). On this record, Father failed to establish that he was induced to sign the Acknowledgement of Paternity by duress, fraud or material mistake of fact. Although Father testified that he executed the Acknowledgment because Mother unequivocally affirmed to him that he was the Child's biological father, Mother credibly testified throughout the proceedings that she had previously told him of having sex with Mr. S. during the relevant time period and that she expressed her uncertainty as to the real father. Upon cross examination, Father corroborated that testimony by repeatedly recognizing that Mother had informed him of her tryst with Mr. S. "and other partners" prior to the execution of the Acknowledgment. Although he tried to rehabilitate his prior testimony by emphasizing that Mother only confessed to "unprotected sexual relations" after the Child's birth, the statements previously made by Father establish that he did not justifiably rely on Mother's purportedly fraudulent statements when he signed the Acknowledgment (see Matter of Joshua AA. v Jessica BB., 132 AD3d at 1108). In any event, whether she confessed to Father about her trysts before or after the Child's birth, that confession nevertheless appears to have made no difference in his knowing execution and unchallenged acceptance of the Acknowledgment of Paternity.
Such conclusion is further supported by the fact that Father did not take any formal or legal steps to challenge the Acknowledgment of Paternity in over 16 years, despite knowing that the Child was not his since 2001 (see Matter of Felton R. v. Gloria P., 63 AD3d 515 (2nd Dept. 2009 [proceeding after 12 years dismissed as "brought well beyond the statutory deadline for rescinding an acknowledgment of paternity"]). It could be safely inferred from Father's inaction for such an inordinate period of time that he permitted and/or sought to be held himself out as the Child's father, regardless of the identity of the Child's actual biological progenitor. This is especially so given his admission that he could have read and understood the Acknowledgment which, on its face, established his paternity of the Child as if "an Order of Filiation was entered after a court hearing" and his awareness of his rights and obligations with respect thereto, including an obligation to provide support for the Child. Therefore, Father has failed to establish a prima facie case of duress, fraud or a material mistake of fact against Mother (see Matter of Joshua AA. v Jessica BB., 132 AD3d at 1108).
Nor do the cases relied upon by Father call for a different conclusion. In both Matter of Sidney W. v Chanta J. (112 AD3d 950) and Matter of Derrick H. v Martha J. (82 AD3d 1236), the courts credited the testimony of the putative fathers that the mothers misrepresented to them that they were the children's biological fathers without informing them of any prior sexual relations. These type of proceedings involve factually sensitive situations were courts are afforded deference in their credibility determinations as long as there is support in the record (see Papovitch v Papovitch, 84 AD3d 1045, 1046 [2nd Dept. 2011]; Matter of Derrick H. v Martha J., 82 AD3d at 1238). In the instant case, Mother credibly and consistently testified before this Court that she had actually notified Father of her trysts during her pregnancy and way before the execution of the Acknowledgment, but that Father forgave her, "hop[ed] for the best" and improperly waited all the way for the Child's adolescence to challenge his paternity. IV.
In accordance with the foregoing, the Father's motion to vacate the Acknowledgment of Paternity is denied and his Petition is hereby dismissed. The matter is respectfully referred to Support Magistrate Nicholas Palos, Part 26, for further support proceedings consistent herewith on May 2, 2017 at 11:00 a.m., at which time both parties must appear ready to proceed. The foregoing constitutes the decision, order and judgment of the Court.
E N T E R:
Dated: March 10, 2017 Brooklyn, New York J.F.C.