Recent Appellate Division Cases on Paternity Estoppel

 

by

 

George E. Reed, Jr.

 

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Cases through January 3, 2012.

For Court of Appeals cases during same period, see article by Michele A. Brown, Esq., in this coursebook.

Also see explanatory notes at end of this article.

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(I)  Estoppel father declared to be father (or challenge to him dismissed)

 

 

Petitioner is estoppel father.  His petitions granted without hearing.

 

Mother permitted the petitioner to hold himself out as the children's biological father and permitted them to develop a parent-child relationship. She also allowed the children to develop a relationship with the paternal grandmother.  When twins were approximately age 10, after the mother began to keep the children away from the petitioner, he filed for paternity. The Supreme Court applied the doctrine of equitable estoppel in adjudicating that the petitioner was the father of the children.  Affirmed;  hearing was not required.  Seth P. v. Margaret D., -- A.D.3d – (2d Dep’t Dec. 27, 2011).

 

 

Respondent is estoppel father.

 

Mother's paternity petition against putative father, granted based on estoppel.

Child always called appellant Dad, and wanted a relationship with him.

App. Div. affirms.  Wanda M. v. Lawrence T., 80 A.D.3d 765 (2d Dep’t 2011).

 

 

Petitioner seeking to vacate acknowledgment of paternity is estoppel father.

 

Man named on birth certificate petitions to vacate acknowledgment of paternity, child now age 3.  Child "is bonded to petitioner, who is the only father the child has ever known."  Family Court (Judge Duggan) denied a DNA test on ground of estoppel, affirmed.  Savel v. Shields, 58 A.D.3d 1083 (3d Dep’t 2009).

 

 

 

 

 

Respondent is estoppel father;  there was an operative father-child relationship even if somewhat limited. (Multiple cases)

 

DSS petition for paternity.  Child age 13, calls putative father “Dad.”  Family court orders filiation without a GMT.  Affirmed.  C.S.S. v. Victor C., -- A.D.3d – (1st Dep’t Jan. 3, 2012).

 

 

Appeal by LG.   The putative father and the child, who was 15 years old at the time these proceedings commenced, had established a parent-child relationship and the child had developed relationships with members of his family. From these facts, the Family Court should have found that there was sufficient evidence of harm to the child since the child. Under these circumstances, the evidence indicating that the parent-child relationship was somewhat limited did not preclude the application of the doctrine of the equitable estoppel. App Div reverses and remands for a new hearing on estoppel.  Smythe v. Worley, 72 A.D.3d 977 (2d Dep’t 2010).

 

 

Typical paternity petition (mother vs. putative father), no other man alleged.  Child age 14, called appellant Dad.  Affirmed even though appellant's parental role was "somewhat limited" (saw child every few months and bought him clothing).  Glenda G. v. Mariano M., 62 A.D.3d 536 (1st Dep’t 2009).

 

 

 

Respondent is estoppel father.

 

Appeal by estoppel father.  Estoppel affirmed, no discussion of facts.  Lisa C. v. Steven T., 71 A.D.3d 886 (2d Dep’t 2010).

 

 

Petitioner is probably bio father, but another man is estoppel father.

 

 

Alleged bio father petitioned for paternity.  Child age 7.  Estoppel father moved to dismiss.  Even though he knew he was not the bio father, he had acknowledged paternity and acted as father throughout.  Reversing Family Court, App Div grants estoppel father's motion to dismiss alleged bio father's paternity petition.  Dustin G. v. Melissa I., 69 A.D.3d 1019 (3d Dep’t 2010).

 

 

Petitioner is probably bio father, but boyfriend is estoppel father.

All possible fathers should be parties.

 

Probable bio father petitions against mother for paternity of child age 10.  Family Court dismisses petition.  “In support of her motion, the mother asserts that at the time the child was born, she was living with her boyfriend, with whom she and the child currently reside, and her boyfriend has acted as the child's father throughout the child's life, providing her with food, clothing and necessities. In addition, the child refers to the boyfriend as her father, the boyfriend has supported the child in school and in her everyday activities, and the mother believes the boyfriend to be the father of the child as well as the father of their two younger sons, ages nine and six. Notably, the child bears the boyfriend's surname. 1

 

[1 Clearly, the boyfriend should have been named as a necessary party (see Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 6 [2010]; Matter of Richard W. v Roberta Y., 212 AD2d at 90-92). However, we find that, on the record before us, the oversight does not undermine the correctness of Family Court's order dismissing the petition.]

 

App. Div. affirms dismissal of petition.  Edward WW v. Diana XX, 79 A.D.3d 1181 (3d Dep’t 2010).

 

 

Petitioner male  is not estoppel father;   he was not involved with child;  apparent bio father was.

 

Here, the petitioner commenced this proceeding after he had been arrested and charged with murdering the subject child's mother. The petitioner was subsequently convicted, inter alia, of murder in the first degree and sentenced to life in prison without the possibility of parole. The evidence established that the six-year old subject child had a relationship with a person identified by her deceased mother as her biological father. Accordingly, the petitioner failed to identify any benefit that would accrue to the subject child if the petition were granted.   Since the Family Court was presented with sufficient information to make a determination as to the subject child's best interests, the Family Court properly granted the motion of the attorney for the child to dismiss the petition on the ground of equitable estoppel without conducting a hearing.  Leonardo Antonio V. v. Estate of Joanna B., 82 A.D.3d 1253 (2d Dep’t 2011). 

 

 

Petitioner biological father has petition dismissed;  another man is estoppel father.

 

Appeal by bio father (DNA test positive) from order dismissing his paternity petition on ground another man was estoppel father.  Affirmed;   it would be detrimental to the child's interests to disrupt her close relationship with respondent Wayne N., whom she knows as her father and whose actions established a close parental relationship with her.  Fidel A. v. Sharon N., 71 A.D.3d 437 (1st Dep’t 2010).

 

 

Petitioner putative father in prison;  fiance would be estoppel father.

 

Putative father serving a 32-year sentence files for paternity of child age 10.  “[T]h e attorney for the child met with the subject child and observed that the subject child considered the mother's fiance, with whom he and the mother have resided since 2003, to be his father." Note use of LG’s hearsay as to child.  Family Court dismisses petition without a hearing, App. Div. affirms.  Willie W. v. Magdalena D., 78 A.D.3d 958 (2d Dep’t 2010).

 

 

(II)  Estoppel not found.

 

 

No evidence to support estoppel.

 

Acknowledgment father files pursuant to FCA §516-a to vacate his acknowledgment of paternity.  Family Court, the petitioner appeals from an order of the Family Court, which dismissed his petition after a hearing.   App. Div. reverses dismissal, reinstates the petition and remits to Family Court.  The petitioner established that he executed the acknowledgment of paternity based upon a material mistake of fact.  The Family Court improvidently exercised its discretion in concluding that, nonetheless, the petitioner was estopped from denying his paternity of the child.   The hearing evidence demonstrated that no parent-child relationship existed between the petitioner and the subject three-year-old child, who had only limited contact with the petitioner during the first 18 months of her life, and virtually no contact thereafter.   Derrick H. v. Martha J., 82 A.D.3d 1236 (2d Dep’t 2011). 

 

 

Four-month relationship is not estoppel.

 

Bio father petitions for paternity, GMT is positive.  Mother and LG appeal, presumably because petitioner committed domestic violence against mo and was incarcerated for two years for same.   Child age 4 at time of Family Court order.

 

"Furthermore, contrary to the contention of respondent and the attorney for the child, the child's four-month relationship with respondent's fiance is not sufficient to warrant application of estoppel."

* * *

Finally, inasmuch as the genetic marker test results were certified in accordance with CPLR 4518 (d) and respondent failed to file written objections to those results, they were properly admitted into evidence without the need for foundation testimony or further proof of authenticity or accuracy (see CPLR 4518 [e]; see also Matter of Department of Social Servs. v John James H., 249 AD2d 545, 545-546, 672 N.Y.S.2d 372 [1998]).

 

App. Div. affirms.  Note that this decision suggests that estoppel is not synonymous with best interests.  Stephen W. v. Christina X., 80 A.D.3d 1083 (3d Dep’t 2011).

 

 

No estoppel hearing because no estoppel father (except possibly bio father himself).

 

Mother files paternity petition against actual bio father (DNA positive) when child is age 9.  Bio father has had no involvement and argues there should have been an estoppel hearing.  No indication of any estoppel father;  mother had told child at age 5 that appellant was his father.  Filiation and other orders affirmed.  Saragh Ann K.v. Armando Charles C., 67 A.D.3d 537 (1st Dep’t 2009).

 

 

Respondent man raises estoppel as defense.  GMT nevertheless ordered.

 

 

Petition of mother vs. putative father.  Family Court ordered GMT;  App. Div. affirms.  "Under the unusual circumstances of this case, the appellant failed to allege facts sufficient to warrant a hearing on his equitable estoppel defense."

(Opinion does not explain who was claimed to be an estoppel father).

Marilene S. v. David H., 85 A.D.3d 1035 (2d Dep’t 2011)

 

 

(III)  Further proceedings required.

 

 

Respondent male asks for GMT.  In camera required.

 

On behalf of the mother, who lives in Georgia with the subject child, the petitioner initiated this proceeding against the respondent under the Uniform Interstate Family Support Act, seeking an order of filiation and support. After the respondent requested genetic paternity testing, the attorney for the child moved to preclude such testing and to equitably estop the respondent from denying paternity, based, in essence, on his established relationship with the child. The Family Court found that the record was insufficient for it to decide the motion, and it ordered the mother to produce the child in the Family Court so it could conduct an interview with the child (see Matter of Lincoln v Lincoln, 24 NY2d 270). We granted the petitioner leave to appeal and stayed execution of the order.   * * *   [W]e find that it was not an improvident exercise of discretion for the Family Court to conclude that the young child's actual presence in New York was necessary in order for the court to fulfill this most "demanding" of responsibilities (Matter of Lincoln).

 

(Note:  this was an interim appeal from the order to produce child for in camera from Georgia.  No determination made as to estoppel.)  Nassau Co. DSS v. Alford, 82 A.D.3d 1242 (2d Dep’t 2011).

 

3-year-old child would cry, say acknowledgment father was not her father.  Remand for psychiatric evaluation. 

 

Acknowledgment father petitioned to vacate acknowledgment of paternity.  Family Court denied petition.    Petitioner testified, and it appears to be undisputed, that when the child was approximately three years old, the child would cry during visits with petitioner and say that petitioner was not his father. According to petitioner, his relationship with the child appeared to be "going backward" and the child indicated he did not want to be with petitioner. Under all the relevant circumstances, Family Court erred in determining that the question of equitable estoppel could be resolved without a psychiatric evaluation of the parties and the child.  App. Div. reverses, remands for hearing  before a different judge.  Troy V.G. v. Tysha M. McG., 79 A.D.3d 606 (1st Dep’t 2010). 

 

Estoppel issue not reached yet;  hearing requied on vacatur of acknowledgment of paternity.

 

Mother petitioned to vacate an acknowledgment of paternity on ground of duress;  Family Court dismissed the petition;  App. Div. reverses.  GMT has been done and shows a different man to be the bio father.  Jeannette GG v. Lamont HH, 77 A.D.3d 1076 (3d Dep’t 2010).

 

A 3-father case.  Remand for hearing on both estoppel and presumption of legitimacy.

 

A 3-father case.  Mother was married at time of child's birth.  Child grew up with mother's paramour acting as her father.  Now comes an alleged bio father and files for paternity.  Family Court orders a DNA test, but App. Div. reverses and remands a hearing as both estoppel and the presumption of legitimacy.  Tracy C.O. v. Douglas A.F., 66 A.D.3d 1390 (4th Dep’t 2009).

 

 

(IV)  Marriage

 

 

Petition of alleged biological father;  marriage.

 

Alleged bio father, not the husband, petitioned for paternity of child (presumably) born to marriage. AD reverses order for GMT (which was stayed) and dismisses petition.  Child called husband “Dad.”

 

It is undisputed that the husband was present at the hospital on the day of the child's birth, lived with the child since her birth, was actively involved in her care and schooling, and established a loving father-daughter relationship with the child over the first 4 1/2 years of her life prior to the filing of the petition. Further, it is uncontested that the father-daughter relationship between the husband and the child continued to exist at the time of the hearing, and that the child refers to him as "pop, father, dad, [or] poppy."  Felix O. v. Janette M., -- A.D.3d – (2d Dep’t Nov. 29, 2011)

 

 

DSS’s petition sustained without hearing on ground of estoppel;  marriage.

 

The children, all of whom were conceived and born during the marriage, are presumed to be the legitimate children of the mother and her husband (see DRL §240[1]). Moreover, under the particular circumstances of this case, the Family Court properly applied the doctrine of equitable estoppel and concluded, without a hearing, in effect, that it was in the best interest of  the children to preserve their status as legitimate. Accordingly, the Family Court properly, without a hearing, in effect, granted the motion of the DSS pursuant to CPLR 3211(a)(7) to dismiss the petitions.

 

(App Div affirms dismissal of paternity petitions without any detail as to the nature of the estoppel, just referring to the marital status.)  Carl Henry P. v. Tiwiana L., 82 A.D.3d 1245 (2d Dep’t 2011). 

 

 

Petition of alleged bio father for paternity;  marriage;  dismissed even though mother recently told child there was an issue.

 

Alleged bio father petitioned for paternity of  (presumed) child of married couple.  Child age 10.  Child has marital surname, and always believed mother's husband was her father, although recently told by mother there was an issue.  Petition dismissed, affirmed. 

App. Div. also notes that the appellate LG had not met with or spoken with child, and had replaced the LG.  (No indication of what LG should say to child, but in view of mother's disclosure of issue to child, there would be no reason not to have fully disclosed conversation).  Mark T. v. Joyanna U., 70 A.D.3d 1068 (3d Dep’t 2010).

 

 

Marriage presumption overcome;  couple had split around time of conception;  another man is estoppel father.

 

Estoppel father's paternity petition was granted by Family Court, even though mother was married to another at time of conception.   Husband petitioned for paternity, but failed to appear and his petition was dismissed on default.  Husband then appealed from estoppel father's order of filiation, as non-party appellant.  Order of filiation in effect affirmed (dismissal of appellant's motion converted to a denial).   Married parties had split at or before time of conception, and estoppel father had been permitted to take on responsibilities of fatherhood.  Jason E. v. Tania G., 69 A.D.3d 518 (1st Dep’t 2010).

 

Children called petitioner Daddy;  marriage.

 

An estoppel substitute case.  Man petitions for paternity of two children of a married mother.  Mother claims estoppel should be involved to prevent man from asserting paternity.  But man was full involved, and the operative parental relationship was between man and children.  Children called him Daddy.  Granting of paternity to man was affirmed, in order to accomplish the same result usually reached by estoppel.  Marilyn C.Y. v. Mark N.Y., 64 A.D.3d 645 (2d Dep’t 2009).

 

 

Note:

 

The following terms are used in this article as shorthand.    Except for “husband”, they are not legal terms or in general use:

 

acknowledgment father – man who has signed an acknowledgment of paternity.

estoppel father – man who presents as father by virtue of his involvement with child, not necessarily believed by the adults to be the biological father.

husband – man who was married to child’s mother at time of birth or conception

LG – attorney for the child (abbreviation used because it is more easily recognizable)

 

Daddy rule:

 

In almost[1] every case where it is recited that a child calls a man “Daddy” or “Dad”, that man will be the legal father (or at least any other man will be rejected as a possible father).

That finding appears to be more conclusive than an acknowledgment of paternity or a marriage.

Observation based on search for:  paternity /50 estop! AND dad!

 



[1] In Richard B. v. Sandra B.B., 209 A.D.2d 139 (1st Dep’t 1995), the husband/father seeking to vacate the child support provisions of his recent divorce judgment claimed the child called the mother’s paramour Daddy, but nevertheless lost;  there is no indication whether that claim was credited.

 

 

 

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            Last Updated January 4, 2012

 

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