A New York Family Lawyer said this proceeding before the court is a petition by X for an order declaring him to be the father of PJ who was born on 16 July 1999 and for an order setting his child support obligation. A, the child’s mother, opposes the petition. B, married to A at the time of PJ’s conception and birth and continues to be married to her today, also opposes the paternity petition. The Attorney for the Child also opposes the paternity petition.
On 7 January 2004, X filed his petition. At around this time, PJ was four-and-a-half years old. For a variety of reasons not having anything to do with X, the case took an inordinately long time to conclude. A and B together successfully evaded service for more than 19 months. When the Magistrate learned that A was married when PJ was born, she added B as a necessary party, issued a summons for him to appear. The court referred the matter to a judge to address the issues of equitable estoppel and presumption of legitimacy.
A New York Divorce Lawyer said X and his sister, M, testified in favor of X’s petition. A and B testified in opposition to the petition and in support of their affirmative defenses of the presumption of legitimacy and the doctrine of equitable estoppel. Having considered the evidence and had the opportunity to assess the credibility of the witnesses, the Court’s findings of fact and conclusions of law are set forth below.
A Queens Family Lawyer said on February or April, 1998, X and A met at the Henry Street Settlement where they both worked. A told x that although she and her husband were living in the same household, they slept in separate bedrooms and did not have sexual relation. X and A started dating and three months after, A told X she was pregnant. A showed him an ultrasound picture of the child and to X, it was understood that A was telling him that he was the baby’s father. Thereafter, X provided A with financial support of about $50 to $60 each month throughout the pregnancy. They continued to spend time together until the affair ended on December 1998.
A Long Island Family Lawyer said PJ was born on 16 July 1999. X spoke with A and arranged for him to see PJ. X wept when he held the child for the very first time. Since then, he was the doting father showering his daughter with gifts and providing her needs. He bought A a camera to document the child’s milestones. He continued to give A $60 each month. X also had the opportunity to introduce PJ to his family and was also introduced to A’s side of the family. He spent his days off with A and PJ. During these occasions, he would notice B watching them during the pick-up and drop offs and even helped set the car seat once.
Some changes were made in the summer of 2000 when X’s off was switched and when an altercation between X and B happened when X brought A a computer for her and her children. B punched X on the face.
X continued to visit regularly with PJ for the next three-and-a-half years, although the visits became sporadic. In February 2003, X moved to Willimantic, Connecticut, a three-and-a-half hour-drive to Brooklyn. Still, he traveled to Brooklyn approximately every other weekend to see PJ. X spoke with A several times a week and repeatedly asked her to arrange for more time for him to visit with PJ. He continued to give A money for PJ and took them shopping for clothes, shoes, toys — whatever PJ needed — on virtually every one of his visits. A and B accepted all the things X purchased and all the money he provided.
A’s version of the story, on the other hand, is that she admitted that she had a romantic relationship with X, but insisted they were sexually intimate only once — in October 1998, within the time pertinent to PJ’s conception. She agreed that X met PJ at the Bear Mountain picnic when she was a few weeks old but stated that he did not see her again until she was about eight months old — an assertion rendered demonstrably false by photographs she took of X and PJ together in November 1999.
A acknowledged that she permitted X to visit with PJ until she was nearly five years old and that she and X took PJ to visit X’s sister and father at least twice. She testified that she took photos of PJ between visits from the time PJ was 6 months to 18 months old and gave X new sets of pictures at each visit, all of which X put in his album. She also took pictures of PJ to show to X’s family.
A testified that she arranged and permitted X to visit with PJ because he was a friend and she “felt pity for him” as he had no children of his own. In addition, although she denied that X gave her any financial support for PJ, she acknowledged that he did buy her things. A testified that she stopped X’s visits in January 2004, because she did not want to be bothered seeing him anymore.
B testified that he first learned that X might be PJ’s father in January 2000, when A confessed her infidelity. Although she did not identify the man with whom she had been unfaithful and he was not curious enough to ask. B “assumed” it was X. He stated that he and A did “calculations,” — it is not clear what those calculations were — and, based upon those calculations, he was satisfied that he could be PJ’s father. After doing the “calculations,” he and A never spoke of the matter again.
From among the testimonies, the court finds X’s the most credible. He was clear, definitive, consistent, and detailed in the story he told about his connection and relationship with PJ. His testimony was amply supported by his sister’s testimony and the many photographs chronicling his life with PJ — and by many of respondents’ admissions and acknowledgments.
Preliminarily, it is important to note that this is a paternity petition brought pursuant to Family Court Act (“FCA”) § 532 for an order declaring petitioner to be PJ’s biological father. The narrow question presented here is whether, under FCA §532(a), petitioner should be granted his request for a DNA test to determine if he is PJ’s father.
Section 532(a) of the FCA provides, in relevant part, that when paternity is contested, the court shall advise the parties of their right to one or more genetic marker or DNA tests and, on the court’s own motion or the motion of any party, shall order the mother, her child, and the alleged father to submit to one or more genetic marker or DNA tests. This directive is not precatory; a court does not have discretion to disregard these provisions. However, as exceptions to the otherwise absolute right to court-ordered DNA tests, the statute provides that no such test shall be ordered upon a written finding by the Court that it is not in the best interest of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.
It was held in Jean C. v Andrew B that implicit in the statute is the assumption that it is generally in the best interests of a child to know who her biological father is and not be burdened with one who is not in fact her natural father. For that reason, not even an order of filiation declaring that someone else is the father of the child or a mother’s objection can limit the right of a biological father to bring a paternity action declaring him to be the child’s father as held in Tyrone G v Fifi. Further underlying the statutory mandate for DNA testing is the recognition that such a test is often the key to the door through which an unwed father must pass before he may exercise his right to participate in his child’s life.
X established his prima facie right to a court-ordered DNA test through his credible testimony that he engaged in sexual relations with A during the period pertinent to PJ’s conception, which A acknowledged to be so. His uncontroverted testimony that A informed him of his impending fatherhood when she was three months pregnant, later confirmed his paternity in a letter to him, and actively arranged for his visitation and child support standing alone would justify entry of an order declaring him to be PJ’s father absent countervailing factors. Clearly, X has established his prima facie right to a court-ordered DNA test. The court is thus obligated under the statute to order such test unless respondents and/or the Attorney for the Child proved that one of the exceptions applied.
The presumption of legitimacy is a rule of evidence rather than a rule of substantive law. Although often described as one of the strongest known to the law, the presumption is rebuttable. It was never intended to suppress the truth or perpetuate a falsehood and it is subject to the sway of reason.
The court notes that A and B long ago forfeited their right to lay claim to the presumption. Having voluntarily accepted money and goods from X for four-and-a-half years, acceded to his desire for visitation and acquiesced in the establishment of his long-standing relationship with PJ, they may not now argue that he should be precluded by a fictional presumption from legally establishing the very status they voluntarily conferred — implicitly and explicitly.
The elements of estoppel are: representation by the person sought to be estopped; reliance on the representation by the person asserting the estoppel; and harm to the person who has relied on the representation. The person asserting the defense of equitable estoppel must prove all three elements, and, in the absence of such proof, the inquiry ends and the application for the DNA test must be granted.
For four-and-a-half years, X, relying on representations A made to him, declared himself to be PJ’s father. X seeks a DNA test not to deny his paternity, but to have it legally recognized; not to avoid his responsibility to his child, but to embrace it.
Respondents and the Attorney for the Child argued that, notwithstanding his actions, X waived his right to seek a DNA test by not filing his paternity petition with the court until PJ was four-and-a-half years old. Their contention is without merit.
As an initial matter, the only time limit imposed by the statute for the filing of a paternity petition is the child’s 21st birthday in accordance with FCA §517. Additionally, if, as respondents and the AFC appear to contend, the only “representation” by a putative father that counts in a contested paternity case is the filing of a paternity petition, then equitable estoppel would evaporate as an exception to the statutory right to a DNA test, at least with respect to putative fathers who question or deny their paternity, since it is highly unlikely that they would file a petition asking for an order of filiation. In the face of all his words and actions affirming his status as PJ’s father, as well as A’s active fostering and B’s passive acquiescence in X’s paternal relationship with PJ, the fact that he did not file a paternity petition sooner is of no import.
Respondents failed to produce any evidence that X made or that they relied on any representation by him that caused them to change their position or that lulled them into believing that he would not seek to be recognized as PJ’s father. Nor did they produce any evidence of harm, the third element of equitable estoppel.
Petitioner successfully rebutted the presumption of legitimacy. Respondents failed to establish any of the elements of equitable estoppel: They failed to prove that X made any representation other than his consistent and unwavering assertion that he is and wishes to be legally recognized as PJ’s father. They failed to demonstrate that they reasonably relied on any word or action by X except his expressed belief that he is PJ’s father, which they exploited for their own and PJ’s financial and material benefit. And they failed to establish that PJ would be harmed by a court-ordered DNA test.
As respondents have failed to establish any exception to the statutory right to a DNA test, there is no basis for the Court to inquire whether ordering the test would or would not be in the child’s best interests. Nonetheless, the evidence in this case establishes that PJ’s interests will best be served if the Court orders a DNA test. During the more than four-and-a-half years that X was allowed to participate in PJ’s life, she benefitted from his ongoing, consistent, and unconditional love and support. To the extent respondents considered PJ’s interests at all during that time, they plainly believed and acted as though it was in her best interests to have X in her life. Janette severed PJ’s relationship with Felix with nary a thought about whether that was in PJ’s best interests, merely because she (Janette) was “tired” of him.
Putting aside the benefit to a child of knowing the truth about her paternity, the evidence presented in this proceeding establishes that, should a DNA test demonstrate that X is her biological father, PJ will neither lose B’s love nor suffer any disruption of her family. The evidence does establish that should that be the result of the DNA test, PJ may regain X in her life along with his love and emotional and financial support. All of these circumstances demonstrate that it is in PJ’s best interests that a DNA test be ordered so that it can conclusively be established whether X is her biological father.
As no exception to petitioner’s statutory right to a court-ordered DNA test has been established and the totality of the circumstances demonstrates that it is in the child’s best interest that a DNA test establish whether petitioner is her father, the petition is granted.
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