In the Matter of Denise R.-D. (Anonymous), appellant
Julio R. P. (Anonymous), respondent. Docket No. P-23300-17
Submitted - September 23, 2019
Balahtsis, New York, NY, for appellant.
H. Rotkowitz, Flushing, NY, for respondent.
P. Moskowitz, Jamaica, NY, attorney for the child.
LEONARD B. AUSTIN, J.P. SHERI S. ROMAN BETSY BARROS FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
proceeding pursuant to Family Court Act article 5, the mother
appeals from (1) an order of the Family Court, Queens County
(Robert I. Caloras, J.), dated October 19, 2018, and (2)
findings of fact of the same court dated October 22, 2018.
The order, after a hearing, denied the mother's
application for a genetic marker test and dismissed the
that the appeal from the findings of fact dated October 22,
2018, is dismissed without costs or disbursements, as no
appeal lies therefrom (see DiFiore v. DiFiore, 87
A.D.3d 971); and it is further, ORDERED that the order is
reversed, on the law, without costs or disbursements, the
petition is reinstated, the determination denying the
mother's application for a genetic marker test is
vacated, and the matter is remitted to the Family Court,
Queens County, for further proceedings in accordance
2017, the mother commenced this proceeding pursuant to Family
Court Act article 5 to adjudicate Julio R. P. (hereinafter
the putative father) the father of the subject child. The
mother and the putative father had an intimate relationship
at the time the child was conceived. The putative father was
present at the hospital shortly after the child's birth
in November 2000, and attended the child's baptism. After
the child was nine months old, there was no further contact
between the putative father and the child. In July 2004, the
mother married Hector R. (hereinafter the husband), with whom
she had been in a relationship since the child was two years
old. In 2008, the mother filed prior petitions against the
putative father for paternity and custody of the child, which
were subsequently dismissed due to the mother's failure
to appear in court.
putative father moved to dismiss the instant petition on the
basis of equitable estoppel. After a fact-finding hearing,
the Family Court determined that the mother and child were
estopped from asserting the putative father's paternity,
upon determining, inter alia, that the putative father had no
relationship with the then 17-year-old child and that the
child had been in a lengthy parent-child relationship with
the husband. The court denied the mother's request for a
genetic marker test and dismissed the petition. The mother
appeals. We reverse.
doctrine of equitable estoppel may be used by a purported
biological father to prevent a child's mother from
asserting biological paternity-when the mother has acquiesced
in the development of a close relationship between the child
and another father figure, and it would be detrimental to the
child's interests to disrupt that relationship"
(Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d
1, 6). "In this context, courts generally impose
equitable estoppel to protect the status interests of a child
in an already recognized and operative parent-child
relationship" (Matter of Suffolk County Dept. of
Social Servs. v. James D., 147 A.D.3d 1067, 1069
[internal quotation marks omitted]. "[W]hether it is
being used in the offensive posture to enforce rights or the
defensive posture to prevent rights from being enforced,
equitable estoppel is only to be used to protect the best
interests of the child" (Matter of Juanita A. v.
Kenneth Mark N., 15 N.Y.3d at 6). "[T]he issue does
not involve the equities between the two adults; the case
turns exclusively on the best interests of the child"
(Matter of Shondel J. v. Mark D., 7 N.Y.3d 320,
party moving for dismissal of the petition, the putative
father failed to establish that the child would suffer
irreparable loss of status, destruction of his family image,
or other harm to his physical or emotional well-being if a
genetic marker test was ordered (see Matter of Derrick H.
v. Martha J., 82 A.D.3d 1236, 1239). Here, the record
reflects that the child was told by his mother and the
husband at a young age that the putative father was his
biological father. "Equitable estoppel is not used to
deny the existence of a relationship, but rather to protect
one" (Matter of Ramos v. Broderek, 166 A.D.3d
783, 784). Absent any indication that the child's
relationship with the husband needed protection from a
determination as to whether the putative father was the
biological father, equitable estoppel was not available to
the putative father as a remedy (see id. at 784;
Matter of Suffolk County Dept. of Social Servs. v. James
D., 147 A.D.3d at 1069; Matter of Derrick H. v.
Martha J., 82 A.D.3d at 1239). Thus, under the
circumstances, any lack in diligence by the mother in
pursuing her earlier petitions was not a basis to estop her
from seeking to establish the putative father's paternity
(see Matter of Shondel J. v. Mark D., 7 N.Y.3d at
331; cf. Matter of Karen G. v. Thomas G., 109 A.D.3d
we reverse the order appealed from, reinstate the petition,
vacate the determination denying the mother's application