A New York Family Lawyer said this matter was referred to this Court by a Support Magistrate for determination as to whether equitable estoppel may be invoked by the Respondent to prevent genetic testing in this paternity petition. Before setting forth the procedural history of this matter, the Court will list the parties involved to avoid confusion. The child at issue is born January 1, 1997 (ten years old). Petitioner is the mother of the child’s mother and is the child’s maternal grandmother. The mother is currently married to his husband. Respondent is the child’s alleged biological father.
A New York Custody Lawyer said that, on or about July 26, 2006, the Nassau County Department of Social Services, on behalf of petitioner mother, filed a petition requesting that an Order be made declaring respondent, the father of the subject child, and for an order of child support. The Court docket reflects that when the matter came before the Support Magistrate, the issue of equitable estoppel was raised. The Support Magistrate assigned a Law Guardian, to represent the subject child and the matter was adjourned for the Law Guardian to speak with the child. On the adjourned date, the Law Guardian informed the Support Magistrate that the child “knows” that the Respondent is her “biological” father, but calls another man “Daddy”. As a result, the matter was referred to this Court for inquiry into the issue of equitable estoppel.
A Nassau Guardianship Lawyer said that, this Court assigned a 18-b counsel to represent petitioner; and another 18-b counsel to represent the mother; and the Nassau County Legal Aid Society to represent the respondent, after conference with the parties, this Court established a schedule for the submission of papers on this issue, and the matter was set for reserved decision.
A Westchester County Family Lawyer said that, the Respondent filed a Notice of Motion on February 5, 2007, requesting that this Court dismiss the paternity petition, on the grounds that the Petitioner should be equitably estopped from adjudicating the Respondent as the child’s father. Respondent contends that the mother should be estopped from naming someone other than her husband as the child’s father. Respondent alleges that the mother has engaged in conduct that amounts to “false representations of material fact,” namely that she has held her husband out to be the child’s father. Respondent states that the mother has never told the child not to refer to her husband as her father, and that the father has been in contact with the child for a significant part of her life. The Respondent alleges that the mother told the child, when she was seven years old, that the husband was not her father. Respondent denies taking part in naming the child, and he had no idea that the child existed until he received a letter from Petitioner this past year. Respondent does not have a father-daughter relationship with this child, and has not had any visitation with her. In the event the court adjudicates him to be the child’s father, he has no interest in having a relationship with her. The Respondent believes that it is in the child’s best interests not to have her current father-child relationship thwarted by a late attempt to adjudicate him as the father.
A Westchester County Custody Lawyer said that, the mother filed an opposing affidavit on or about February 23, 2007. The mother details that she and the Respondent lived in the same building prior to and after the child’s birth; she engaged in sexual relations with the Respondent nine to ten months prior to the child’s birth; Respondent was aware she was pregnant; Respondent refused to attend the hospital when the child was born; she gave the child Respondent’s last name and listed the Respondent on the child’s birth certificate; the Department of Social Services filed numerous petitions since the child’s birth to adjudicate Respondent the father, but these petitions were dismissed because Respondent could not be served; when the child was seven years old, she believed she “possessed sufficient maturity and understanding” to tell her that her “biological” father is the Respondent; and the child knows no other man as her father other than the Respondent. The mother asks that this Court deny the Respondent’s application and establish the Respondent as the child’s father, as the child wants to “know who her father is” and “meet him”.
A Nassau Guardianship Lawyer said that, the Law Guardian filed an affirmation in opposition on or about February 28, 2007, in opposition to Respondent’s “order to show cause. The Law Guardian states that the child learned that her “biological” father was the Respondent when she questioned her mother about her last name. This conversation took place when the child was seven years old and since that time, she has expressed a desire to meet the Respondent. The Law Guardian states that there is no fraud in this case, because although husband is married to the child’s mother, he has never held himself out as the child’s father. The child does not even live with the mother or the husband; she lives with her maternal grandmother. The child only sees her mother and the husband on the weekends and he has been incarcerated for a “good portion” of the child’s life. The Law Guardian asserts that it is “about time” the child had “closure regarding this matter” and the child should know who her real father is. The Law Guardian speculates that if Respondent is adjudicated to be the “biological” father, he may want to have a relationship with the child.
A Nassau Family Lawyer said that, the maternal grandmother, filed an affidavit on or about March 1, 2007. The maternal grandmother states she has had custody of the child since 1998, per order of the Nassau County Family Court, and the child has resided with her since her birth. Her daughter has been married to the said husband since 2000. The child has had no contact with the Respondent and regards the husband as her “father”. The child refers to him as “Daddy”. Finally, the Department of Social Services, by Deputy County Attorney, filed an affirmation in opposition on or about March 2, 2007, requesting that the motion to dismiss be denied, and that Respondent be ordered to submit to a paternity test.
The issue in this case is whether equitable estoppel may be invoked by the Respondent to prevent genetic testing in this paternity petition.
The Family Court Act (“FCA”) mandates that genetic testing may not be ordered without the Court first making a written finding that it is not in the best interests of the child on the basis of equitable estoppel. FCA section 418 (a). The doctrine of equitable estoppel is a remedy based in equity that 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.
Courts have regularly applied this doctrine as a defense to preclude a party from being compelled to submit to genetic testing. The moving party bears the burden of proof to show by clear and convincing evidence that he or she is entitled to invoke this doctrine. If the Petitioner fails to make a prima facie showing of his or her entitlement to invoke the doctrine of equitable estoppel, then the motion must be denied. When the moving party does not make such a prima facie showing, he or she is not entitled to a hearing.
The best interest of the child is the ultimate concern in an equitable estoppel case and the evidence presented to the court must be construed from the child’s perspective. The factors that must 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. Estoppel is therefore applied to prevent the destruction of an intact parent-child relationship.
After considering the papers submitted by the parties, this Court is not convinced that the Respondent may properly invoke estoppel to prevent genetic testing in this matter.
First, the Nassau County Department of Social Services stands “in the shoes” of petitioner, due to the public assistance benefits provided on behalf of the child. It has not been demonstrated that the Department of Social Services has engaged in any “fraud” which would bring harm to the Respondent. The Department is merely seeking an establishment of paternity for the recoupment of public welfare funds expended on behalf of this child.
Second, there is no “parent-child” relationship which the Court must protect between the child and the alleged father. This child does not live with the mother or the alleged father. The child lives with the maternal grandmother pursuant to an order of custody. The child has known for a significant period of time that the alleged father is not her biological father; the mother told the child as much three years ago. It is irrelevant that the child refers to him as “Daddy”. The child understands that the alleged father is simply her mother’s husband. The mother’s marriage to the alleged father which occurred approximately three years after the child’s birth does not create an estoppel issue.
Third, it does not matter that the Respondent has not had “any significant relationship did not know of the child’s existence, and does not plan on having a relationship with her if adjudicated her father. These assertions similarly do not create an estoppel issue when none exists.
This Court cannot find that estoppel applies in this matter. This case is about the Department of Social Services attempting to establish paternity in an effort to recoup monies spent on behalf of the subject child. There is insufficient evidence to show that the child and the alleged father have a relationship that must be protected.
As the Respondent has not shown by clear and convincing evidence that he is entitled to the relief he has requested, his application to preclude genetic testing on the basis of equitable estoppel is denied. As a result, a hearing is not necessary on this application.
Accordingly, the court held that in accordance with FCA section 418(a), this Court finds that estoppel does not apply to preclude genetic testing in this instance. Therefore, this matter is referred to the Support Magistrate on April 25, 2007 at 9:00 am for genetic testing and for further proceedings.
Under the Family Court Act, it mandates that genetic testing may not be ordered without the Court first making a written finding that it is not in the best interests of the child on the basis of equitable estoppels. If you seek dismissed a paternity test, you will need to prove that the same will not redound to the best interest of the child. To do this, you will need the representation of a Nassau Order of Protection Attorney and Nassau Child Support Attorney. Call us at Stephen Bilkis and Associates.