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In re a Paternity Case Pursuant to Article 5 of Family Court Act Damien

Family Court, Monroe County

December 3, 2012

In the Matter of a Paternity Case Pursuant to Article 5 of the Family Court Act Damien, Petitioner,
J.G. and C.G., Respondents.






This case prevents the complex question of whether it would be in the best interests of the two subject girls to ignore racial facts and conclusions that will appear obvious to virtually anyone seeing the parties and subject children, when ruling on a paternity claim made against a marital presumption of legitimacy. Here, the dark-skinned and apparently African-American petitioner Damien (hereinafter "Mr. Damien") filed to be declared the father of the two young girls who are legally the daughters of respondents Mr. and Mrs. G. (Hereinafter the respondent shall be "Mr. G."). Mr. and Mrs. G. both clearly appear to be Caucasian. The very act of filing such a petition given the apparent races of the parties suggests that the two girls apparently look as if their father is African-American, and indeed, the attorney for the children has represented to the court that they look Hispanic.

Judicial notice may be taken of facts which are either notorious or manifest. [1] While the race of each of the parties is not noted in the paperwork, the court takes judicial notice of each adult's race for the purpose of this motion to dismiss, as it would do so at any evidentiary hearing. This aspect of the case is unavoidably obvious, and this court believes these facts as to race are not only obvious but relevant to the paternity issue. Simply ignoring the apparent racial identities of the parties and the children would not make the racial aspects of this case disappear no matter how hard anyone might wish otherwise, and no matter how quickly or slowly racial discrimination and consciousness is receding as an issue in our society. A person's racial appearance is as obvious as gender, height, and age— i.e., not necessarily perfectly clear factually, but the visual information is there to be seen by everyone.

In this unusual legal case, C. G. (DOB April 2007) was born approximately 7 years after the G's were married, having been conceived and born while Mr. and Mrs. G. were living together as husband and wife. A year later, Mrs. G. gave birth to a second daughter, K.G. (DOB May 2008). Again, the G's were married and living together at the time of the conception and birth of this second girl. The court is advised and it is not disputed that Mr. G., the mother's husband, is listed as both girls' father on their birth certificates. Indeed, he is legally presumptively the father of the girls by virtue of his marriage to the mother [2]. Furthermore, the children have resided with the G's throughout their lives. It is black letter law that the marital presumption, applicable here is, however, a rebuttable presumption. Mr. Damien (Petitioner) seeks to rebut that marital presumption via this proceeding.


The attorney for the children has moved to dismiss Mr. Damien's paternity petitions, or in the alternative, for a hearing to determining whether having a genetic marker test, as sought by the petitioner, is in the best interests of the children, ages 5 and 4 at the time of the filing. The mother's attorney supports the motion and seeks dismissal of the petition. The attorney for the mother's husband supports the motion seeking dismissal, and alternatively urges that the court find equitable estoppel prohibits the use of a genetic marker test. For the reasons set forth below, the court denies the motion to dismiss, and also denies the request for a best interest hearing. Instead, this court orders that the genetic marker test of the mother, the petitioner and both subject children be held.

The court finds that a hearing is not needed in this regard, despite the assertion of equitable estoppel and the applicable presumption of legitimacy, given the conceded and agreed critical facts of the case as understood by the court and discussed below. However, if any party disputes a key fact that is part of the basis for this decision that a hearing is not required, the court would reconsider holding an evidentiary hearing. A request for such a hearing based on such a contested and relevant fact should be submitted within 10 days of service of this decision upon the attorneys for the parties—or this court will consider that no such disputed critical fact exists and no hearing will be held.


It has been admitted in various court appearances and in affidavits that both girls call both Mr. G. (i.e., their mother's husband) and Mr. Damien (the petitioner) "Daddy", that both girls routinely visit the petitioner by agreement between the parties, that they both enjoy those visits, and that the petitioner pays child support—and the G's accept his child support—for C. G.'s and K. G.'s support. According to the attorney for the children, "the first man they identify as their father is Mr. G., with whom they live, and they acknowledge Mr. Damien as their second father'". The court has been advised by the attorney for the children that both girls, rather than looking Caucasian, in her opinion, look "Hispanic". Given the apparent race of the named parties and the above-stated facts of this case this "Hispanic" appearance is not surprising. Indeed, it has been implicit from the all the proceedings in this case, from the very beginning, that the adult parties all act as if the petitioner Mr. Damien, i.e, the so-called "second father", is the biological father even though the legal father, Mr. G., is the day-to-day father. The belief that the petitioner/Mr. Damien is the biological father is implicitly the basis for his visitation with the girls, his payment of child support for the girls, and his being called "Daddy". If he were not believed to be the ...

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