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In re Todd S.

Supreme Court of New York, First Department

October 17, 2013

In re Todd S., Petitioner-Respondent,
v.
Lauri B., Respondent-Appellant.

Lauri B., appellant pro se.

Todd S., respondent pro se.

Goldweber Epstein LLP, New York (Nina S. Epstein of counsel), attorney for the child.

Acosta, J.P., Saxe, Renwick, DeGrasse, Richter, JJ.

Order, Family Court, New York County (Mary E. Bednar, J.), entered on or about June 8, 2011, which denied respondent mother's objection to an order of filiation (same court, Matthew Troy, Support Magistrate), entered on or about January 20, 2011, declaring petitioner to be the child's father, and bringing up for review an order, same court and Justice, entered on or about November 16, 2010, which denied respondent's motion to dismiss the paternity proceeding on the ground of equitable estoppel, unanimously affirmed, without costs.

The evidence presented at the hearing fails to establish that the best interests of the child will be served by estopping petitioner from asserting paternity (see Matter of Gutierrez v Gutierrez-Delgado, 33 A.D.3d 1133 [3d Dept 2006]). The child, who was three years old at the time of the hearing, was shown to be well adjusted, intelligent, and secure in her family structure. The record does not support respondent's contention that the child would be unduly traumatized or that her relationship with her half-sister or maternal uncle would be harmed by her learning the identity of her father.

Notwithstanding the child's close relationship with her maternal uncle, the court appropriately weighed the absence of an alternative father figure or the existence of an operative parent-child relationship that would be disturbed by the establishment of petitioner's paternity (see Matter of Shondel J. v Mark D., 7 N.Y.3d 320, 326 [2006]; Matter of Antonio H. v Angelic W., 51 A.D.3d 1022 [2d Dept 2008]). Nor, under all the circumstances, did petitioner delay inordinately in seeking to establish his paternity (compare Matter of Rudman v Rubenfeld, 300 A.D.2d 79 [1st Dept 2002]; Terrence M. v Gale C., 193 A.D.2d 437 [1st Dept 1993], lv denied 82 N.Y.2d 661 [1993]; Matter of Mobley v Ishmael, 285 A.D.2d 648 [2d Dept 2001]; Matter of Glenn T. v Donna U., 226 A.D.2d 803 [3rd Dept 1996]). Family Court appropriately considered the testimony of the competing expert witnesses, and properly excluded the report by respondent's expert.


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