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Court Orders Respondent to Submit DNA for Paternity Testing

A New York Family Lawyer said the matter before the Court is a motion brought by the Deputy Court Attorney’s Office, on behalf of the Nassau County Department of Social Services (DSS), seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual. The Deputy County Attorney then submitted reply papers, arguing neither the law guardian nor respondent have established that the child would be irreparably harmed if DNA testing was ordered.

A Nassau County Child support Attorney said that this matter was initiated when DSS filed a petition for paternity and support against respondent. The Presiding Magistrate referred the matter to the Court once the issue of equitable estoppel was raised.

A New York Child Custody Lawyer said the doctrine of equitable estoppel may be used in a variety of family law matters including custody, visitation, support and, as here, paternity. Regardless of whether it is being used in an offensive posture to enforce rights or a defensive posture to prevent rights from being enforced, it is only to be used to protect the best interests of the child or children involved. Herein, the respondent and law guardian seek to invoke the doctrine in an defensive posture, seeking to prevent respondent from having to take a DNA test.

A Westchester County Family Lawyer said in this matter, the respondent and law guardian seek to invoke equitable estoppel, alleging that a different man, is the person whom the child believes to be his father has not submitted an affidavit and in no way has attempted to confirm or refute this allegation to the Court. The law guardian asserts that the child calls the man “Daddy”, has lived with him for the last year, is cared for by him on a daily basis and that he and petitioner have another biological child in common.

A Westchester County Custody Lawyer said the Court finds that the law guardian’s assertions alone do not meet the burden required to establish that a parent-child relationship exists between respondent and the father. A denial of DNA testing on equitable estoppel grounds requires a greater showing of proof.

It is well settled that the Court’s overriding concern when determining whether to invoke equitable estoppel is the best interests of the child. The factors to be considered when trying to make such a determination are: the child’s interest in knowing the identity of the biological parent; whether the biological parent’s identity is likely to be discovered; whether the DNA testing would have a traumatic affect upon the child; and whether uncertainty as to paternity would impact a parent-child relationship. None of the moving or opposition papers provide this Court with sufficient information to address any of these factors. Further, this Court is concerned about the child’s status should equitable estoppel be applied. The law guardian and respondent claim that the man. has a parent-child relationship with respondent. Should the Court invoke equitable estoppel herein, a situation could arise where the man leaves the woman’s family, leaving her with no source of support from a noncustodial parent. This certainly is not in child’s best interest.

Finally, it is clear that respondent’s concern in invoking equitable estoppel is to avoid the responsibilities associated with being declared the child’s father. Equitable estoppel is not to be used for the purpose of avoiding child support. Accordingly, the Deputy County Attorney’s motion is granted. The respondent, petitioner and child are directed to appear for DNA testing. The matter shall be referred back to Magistrate for resolution of the paternity proceeding and, if appropriate, a child support determination. Therefore, it is Ordered that the motion of Deputy County to direct that DNA testing occur is granted.

In another case, a proceeding to register and enforce a foreign order of child support pursuant to Domestic Relations Law § 37-a, the petitioner appeals from (1) an order of the Family Court, Nassau County, which, suasponte, vacated all previous orders of the court in the proceeding and dismissed the proceeding, and (2) an order of the same court, which, inter alia, denied her motion to restore the proceeding to the calendar.

The petitioner commenced an action for a divorce in the State of New Jersey and obtained a pendente lite order of child support there. She then registered the New Jersey support order in the Family Court, Nasssau County, pursuant to Domestic Relations Law § 37-a. In April 1994 the Family Court, Nassau County, found the respondent to be in willful violation of the New Jersey child support order and sentenced him to a period of incarceration, but suspended the sentence for so long as he continued to pay the court-ordered child support plus $500 per month toward arrears.

In May 1994, the parties entered into a consent order in the New Jersey court pursuant to which, in exchange for a payment of $7,500 by the respondent, the petitioner agreed that she would not seek to have the respondent incarcerated for any arrears which accrued prior to that date. Thereafter, presumably after discovering the New Jersey consent order, the court suasponte vacated all of its prior orders in the matter, including the order which found that the respondent had wilfully failed to pay support and imposed, then suspended a sentence of incarceration, and dismissed the petitioner’s proceeding to register and enforce the foreign child support order pursuant to Domestic Relations Law § 37-a. The petitioner moved to restore the matter to the calendar, but her motion was denied on the ground that she had not demonstrated that she was likely to become a public charge as required by Family Court Act § 464, and because the court found that she was improperly seeking the same relief in two jurisdictions.

The Court disagrees on the contention.

The consent order entered in New Jersey, whereby the petitioner agreed not to seek the incarceration of the respondent for arrears of child support, essentially superseded the order imposing a period of incarceration and suspending the sentence as that order was addressed to those very arrears. The court properly vacated that order. However, by the express terms of the consent order any arrears remaining after the payment of the $7,500, were unaltered and were not vacated, and the New Jersey pendente lite order of support remained in effect. The petitioner was still entitled to enforce that order in the Family Court, Nassau County, pursuant to Domestic Relations Law § 37-a; she simply could not seek to incarcerate the respondent for arrears which had accrued prior to the consent order.

Therefore, the court improperly dismissed the proceeding pursuant to Domestic Relations Law § 37-a to register and enforce the New Jersey pendente lite order of child support.

The requirements of Family Court Act § 464 apply only where the matrimonial action is in the Supreme Court of the State of New York, and not where the matrimonial action is in a foreign jurisdiction. That the petitioner is seeking the same relief, i.e., child support, in the action in New Jersey does not subject her registration of the foreign order to dismissal here as the Uniform Support of Dependents Law provides an additional or alternate means of enforcing her right to child support.

A Person mandated to support a child as regards sustenance and other necessaries of a child should be ordered by the Court for the child’s benefit, Here in Stephen Bilkis and Associates, we make it a point that proper support will be ordered by the Court. On the same token, our Nassau County Child Support lawyers ensure that the support is for the benefit of the child to be supported. For other concerns as regards family matters, call our Nassau County Family attorneys no for a proper advice.

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