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Motion Brought By Social Services Request DNA Testing



This is a case where a motion was brought by the Deputy County Attorney’s Office, on behalf of the Nassau County Department of Social Services, seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the subject 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.

This matter was initiated when the Department filed a petition for paternity and support against respondent. The Magistrate presided, and referred the matter to this Court once the issue of equitable estoppel was raised.

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. Id. 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.

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. The 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 him “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.

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 the parties. 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. Greg S. v. Keri C., 38 AD3d 905 (2d Dept. 2007). 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 father has a parent-child relationship with the mother. Should this Court invoke equitable estoppel herein, a situation could arise where the father leaves the family, leaving the wife. with no source of support from a noncustodial parent. This certainly is not in the mother’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 Miller for resolution of the paternity proceeding and, if appropriate, a child support determination. Therefore, it is ORDERED that the motion of Deputy County Attorney Bailey to direct that DNA testing occur is granted; and it is further ORDERED that the parties are to appear before the Magistrate on September 7, 2007.

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