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Court ordered paternity test over the objections of the presumed legal father. Joseph S. v. Crystal B., 73 Misc. 3d 1201, 152 N.Y.S.3d 288 (N.Y. Cnty. Ct. 2021)


In New York there is a marital presumption of paternity. This means that if a child is born to a married couple, there is a presumption that the husband is the father of the child. The husband is the legal father of the child, even if he is not the biological father of the child. The presumed father can prevent another person from establishing paternity. However, under certain circumstances the court will find that it would be in the best interests of the child for a paternity to be administered so that they will know who their biological father is. In Joseph S. v. Crystal B., the court had to decide whether to allow a paternity test over the objections of the presumed father.


In January 2017, Jocelyn, born in 2007, and her seven siblings were remanded to the care and custody of the Administration for Children’s Services (ACS) in a neglect and abuse proceeding.  They were placed in kinship foster care due to allegations of inadequate guardianship and lack of food, clothing and shelter. Their kinship foster parents were the adult children of the respondent.

While the permanency goal initially was to return the children to their parents, it has since changed to kinship guardianship (KinGAP) because the children expressed a wish to remain with their kinship foster parents.

Petitioner seeks to establish paternity of  Jocelyn, born in 2007.  The mother admits that she had a sexual relationship with the petitioner and supported his petition for a paternity test.  However, the child was born while the child’s mother was married to another man, the respondent.  Thus, the respondent is the presumed legal father of the child.  The presumed father responded by filed an application of presumption of paternity and invoked paternity by estoppel to prevent the petitioner from belatedly asserting a claim to paternity.  Thus, the presumed father sought a dismissal of the paternity petition.


An equitable estoppel argument can be invoked “where the failure to promptly assert a right has given rise to circumstances rendering it inequitable to permit the exercise of that right.” Matter of John Robert P. v Vito C. , 23 AD3d 659, 661 (2d Dept 2005).  When considering whether to apply the doctrine of equitable estoppel, the New York Family Court considered more than the fact that the presumed father and the child’s mother were married at the time she was born. The court also considered whether the presumption of paternity was rebutted. The standard for rebuttal is clear and convincing evidence tending to disprove legitimacy. See Matter of Barbara S. v Michael I., 24 AD3d 451, 451 (2d Dept 2005).  Furthermore, the court considered whether it would be in the child’s best interest to establish with certainty who her biological father is. While the court considered several factors, it focused on whether doing so would negative impact the child’s relationship with her legal father. The court found that it would not.

The petitioner had been a part of the child’s life since she was born. The child, who at the time of the hearing had been living in foster care for five years, not only considered the respondent her father, but also considered the petitioner her father as well as her foster care father. There were three men in her life who she considered her father.  In addition, since the she was placed in foster care, the presumed father had not done much to assert his parental rights or strengthen his relationship with the child.  In fact, he had moved to a different state and was not in consistent contact with the child.

Accordingly, the court found that the presumed father failed to show that a paternity test would negatively impact the relationship that the child had with him or any of her other father figures.  It also found that it would be in the child’s best interest to know with certainty who her biological father is.

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