Wanda M. v. Lawrence T.
Matter of Wanda M. v T.
2011
NY Slip Op 00515
Decided
on January 25, 2011
Appellate
Division, Second Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on January 25, 2011
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
JOSEPH
COVELLO, J.P.
THOMAS
A. DICKERSON
L. PRISCILLA HALL
PLUMMER E. LOTT, JJ.
2010-00922
2010-00923
(Docket
No. P-2846/08)
[*1]In
the Matter of Wanda M. (Anonymous), respondent,
v
George E. Reed, Jr.,
Steven N. Ranellone,
Joan C. Salwen,
DECISION
& ORDER
In
a paternity proceeding pursuant to Family Court Act article 5, the putative
father appeals from (1) an order of the Family Court, Westchester County
(Malone, J.), dated December 24, 2009, which, after a hearing, determined that
he is the father of the subject child, and (2) an order of filiation
of the same court, also dated December 24, 2009, adjudging him to be the father
of the subject child.
ORDERED
that the appeal from the first order dated December 24, 2009, is dismissed,
without costs or disbursements, as no appeal lies as of right from that order
(see Family Ct Act § 1112; Matter of Jane PP. v Paul QQ., 64 NY2d 15); and it
is further,
ORDERED
that on the Court's own motion, the notice of appeal from the second order
dated December 24, 2009, is deemed an application for leave to appeal and leave
to appeal is granted (see Family Ct Act § 1112[a]); and it is further,
ORDERED that the order of filiation
dated December 24, 2009, is affirmed, without costs or disbursements.
The
Family Court properly applied the doctrine of equitable estoppel
in determining that the appellant was the father of the child and in denying
his request for a genetic marker test. "[A] man who has held himself out
to be the father of [the] child, so that a parent-child relationship developed
between the two, may be estopped from denying
paternity" (Matter of Shondel J. v Mark D., 7
NY3d 320, 327). In determining whether the doctrine should apply, it is the
child's best interests that are of paramount concern (see Matter of Greg S. v
Keri C., 38 AD3d 905). While a party to a paternity proceeding is generally
entitled to a genetic marker test, no genetic marker test shall be ordered if
the court finds that it is not in the best interests of the child on the basis
of equitable estoppel (see Family Ct Act § 532[a];
see also Matter of Westchester County Dept. of Social Servs.
v Robert W.R., 25 AD3d 62, 71). [*2]
Here,
the testimony at the hearing demonstrated that the subject child,
as well as the parties, have always believed that the putative father is
the subject child's father. The mother testified to an exclusive sexual
relationship with the putative father during the relevant period, and gave the
subject child the putative father's last name at her birth. Shortly thereafter,
the putative father visited with the subject child and petitioned for
visitation. Over the years, he identified himself to the subject child as her
father, who always called him "dad." Testimony also was elicited that
the subject child wants a relationship with the putative father, who
acknowledged that the subject child would be upset if a genetic marker test
showed that he was not her biological father. Under the circumstances, the best
interests of the child support the Family Court's determination to invoke the
doctrine of equitable estoppel.
The
putative father's remaining contentions are without merit.
COVELLO,
J.P., DICKERSON, HALL and LOTT, JJ., concur.
ENTER:
Matthew
G. Kiernan
Clerk
of the Court