A New York Family Lawyer said a man and a woman appeared for conference before the Support Magistrate when the respondent man requested genetic testing be conducted before admitting to paternity of the children. The court file reflects that the man told the Support Magistrate that, although the children refer to him as dad, he is requesting genetic testing because he would like to be sure. The Support Magistrate then assigned a Law Guardian, and the matter was adjourned for further proceedings.
On the adjourned date, a New York Divorce Lawyer said the court file shows that the Law Guardian advised the Support Magistrate that the children recognize the man to be their father and that he spent holidays with them. The man renewed his request for genetic testing before admitting to paternity. The matter was referred to the Family Court for determination as to whether the petitioner woman could invoke the doctrine of equitable estoppel to prevent the man’s request for genetic testing.
The court then set a schedule for submission of papers on the issue. The woman filed a notice of motion requesting that an order be made estopping the man, pursuant to Family Court Act from obtaining genetic testing to disprove paternity of the children.
A Manhattan Family Lawyer said that the Law Guardian filed an affirmation arguing against genetic testing. On or about February 6, 2007, the man filed an affirmation in opposition to the petitioner woman’s motion to preclude genetic testing. The woman filed a reply affidavit.
The doctrine of equitable estoppel is invoked 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 or conduct, has been misled into acting upon the belief that such enforcement would not be sought.
The Family Court Act provides that in a paternity matter, the court may not order genetic testing where the court has issued a written finding that it is not in the best interests of the child on the basis of equitable estoppels (prevents someone from arguing).
The paramount concern in an equitable estoppel case is the best interests of the children. The evidence should be construed from the child’s perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing include the child’s interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect the testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered.
Equitable estoppel may be raised as a defense to preclude a party from being compelled to submit to genetic testing. However, the moving party bears the burden to show by clear and convincing evidence that he/she is entitled to invoke the doctrine of equitable estoppel.
The petitioner woman is requesting that the Family Court issue an order estopping genetic testing. The woman’s moving papers allege that the man resided with her and the children between 1997 and 2004 when the man was thrown out of the home by the woman due to his disorderly conduct; the man was present at the hospital when each child was born; the man spent the last two Christmases with the children; although the man would not execute acknowledgments of paternity for the children, he is their biological father; the man has always held himself out to be the children’s father; no other man has been in the children’s lives; the man objects to being adjudicated the father because he does not want to pay child support; and the children would be devastated if told the man is not their biological father.
The woman must submit evidentiary proof in admissible form, in order to set forth, legitimately, her entitlement to the relief she seeks. If the woman fails to make a legitimate showing of her entitlement to invoke the doctrine of equitable estoppel, then the motion must be denied. When the moving party does not make such a legitimate showing, he/she is not entitled to a hearing.
The Family Court is not convinced by the woman’s arguments that she is entitled to invoke the doctrine of equitable estoppel. Her unsubstantiated allegations and mere conclusions do not make a legitimate showing that equitable estoppel applies. She has not sufficiently pleaded the required elements of estoppel, which are conduct, reliance and harm.
Turning now to the Law Guardian’s affirmation, the Law Guardian argues that it would not be in the best interests of the children to open the issue of their paternity. The Law Guardian contends that the man has held himself out as the children’s father. The Law Guardian states that the children identify the man as their father, they have visitations with him, which occur at least 10 times per year, they can recount Christmas presents given to them by the man, and know the man’s other children to be their siblings.
These statements lack an evidentiary foundation. The Law Guardian does not provide detail for these visitations. The court does not know if these visitations last for five minutes, five hours or five days. The court does not know what kind of relationship, if any, these children have with the man. The Law Guardian does not specify the relationship the children have with the man’s children.
Although the court need not address the man’s claims after finding the moving papers and the Law Guardian’s papers insufficient, it will, nevertheless, address the man’s contentions.
The man alleges that equitable estoppel does not apply for several reasons. He first directs the court’s attention to documents which list other men as the children’s fathers. These documents, which are made part of his papers as exhibits, are photocopied appointment notices from the Queens County Office of Child Support Enforcement, Long Island City, New York. These notices request that the woman appear at their office on February 3, 2003 for an interview regarding an absent parent.
The man further contends that neither child bears his last name. He did not execute acknowledgments of paternity for either child and he has been told that the woman had other male visitors while he resided with her, and she would not allow him to claim the children for tax purposes. The man states that it is in the children’s best interests for them to know their biological father, as he has reservations as to their paternity.
The Family Court has not made a determination as to whether equitable estoppel applies, but has instead found that the moving papers and the Law Guardian’s papers are insufficient. Without ruling on the issue of equitable estoppel, the court finds that the man’s arguments are also factually insufficient. Bare contentions do not show fraud, as the man claims. These allegations are not evidence of anything; the man’s allegations are unsubstantiated conclusions. Interestingly, the man’s papers do not deny that he had or has a relationship with the children, that he has lived with them, or that they recognize him to be their father.
Accordingly, in light of the insufficiencies of these papers, the woman’s application to invoke the doctrine of equitable estoppel, to deny the man’s request for genetic testing, is denied. The woman has not made a legitimate showing in her papers that she is entitled to the relief that she has requested.
Being denied of paternity just to be spared from child support would hurt any person especially the children. If you want to prove your child’s paternity, you can seek the legal expertise of the Nassau County Family Lawyer together with the Nassau County Child Support Attorney. You can also hire a Nassau County Child Custody Lawyer from Stephen Bilkis and Associates to help you in winning your custody battle.