In the Matter of Walter G. (Anonymous), Sr., appellant,
Isabel L. A. (Anonymous), respondent; Charles A. (Anonymous), nonparty-respondent. Docket No. P-14942-18
Submitted - November 18, 2019
Office of Lance H. Meyer, Esq., PLLC, Lake Success, NY, for
S. Bachner, New York, NY, for nonparty-respondent.
Adewole Agbayewa, Fresh Meadows, NY, attorney for the child.
C. DILLON, J.P. SHERI S. ROMAN HECTOR D. LASALLE PAUL WOOTEN,
DECISION & ORDER
proceeding pursuant to Family Court Act article 5, the
petitioner appeals from two orders of the Family Court,
Queens County (Mildred T. Negron, J.), both dated April 12,
2019. The orders, after a hearing, granted the child's
motion to dismiss the petition to establish paternity and
dismissed the petition.
that the orders are affirmed, without costs or disbursements.
2018, the petitioner commenced this proceeding against Isabel
A. (hereinafter the mother) to establish his paternity with
respect to the subject child. The child was born in December
2016, during the mother's marriage to Charles A.
(hereinafter the husband). The child moved to dismiss the
petition on the ground of equitable estoppel. After a
hearing, the Family Court granted the child's motion and
dismissed the petition, finding that the presumption of
legitimacy had not been overcome and that it was in the
child's best interests to equitably estop the petitioner
from asserting paternity. The petitioner appeals.
to Family Court Act § 532(a), "[t]he court shall
advise the parties of their right to one or more genetic
marker tests or DNA tests and, on the court's own motion
or the motion of any party, shall order the mother, her child
and the alleged father to submit to one or more genetic
marker or DNA tests . . . to aid in the determination of
whether the alleged father is or is not the father of the
child." However, "[n]o such test shall be ordered .
. . upon a written finding by the court that it is not in the
best interests of the child on the basis of res judicata,
equitable estoppel, or the presumption of legitimacy of a
child born to a married woman" (Family Ct Act §
child born during marriage is presumed to be the biological
product of the marriage and this presumption has been
described as one of the strongest and most persuasive known
to the law'" (Matter of Onorina CT v Ricardo
R.E., 172 A.D.3d 726, 728, quoting Da vid L. v Cindy
Pearl L., 208 A.D.2d 502, 503 [internal quotation marks
omitted]). "However, this presumption of legitimacy may
be rebutted by clear and convincing evidence 'excluding
the husband as the father or otherwise tending to disprove
legitimacy'" (Matter of Onorina CT. v Ricardo
R.E., 172 A.D.3d at 728, quoting Matter of Barbara
S. v Michael I., 24 A.D.3d 451, 452). Here, we agree
with the Family Court that the petitioner failed to rebut the
presumption of legitimacy by clear and convincing evidence.
The evidence at the hearing established that the
husband's name was listed as the father on the
child's birth certificate, and the testimony of the
various witnesses conflicted as to whether the mother and the
husband had intimate relations during the time period in
which the child was conceived (see Matter of Ariel G. v
Greysy C, 133 A.D.3d 749, 751; Matter of Barbara S.
v Michael I., 24 A.D.3d at 453).
further agree with the Family Court's determination that
the petitioner was equitably estopped from asserting his
paternity of the child. "The paramount concern in
applying equitable estoppel in paternity cases is the best
interests of the subject child" (Matter of Felix O.
v Janette M, 89 A.D.3d 1089, 1090 [internal quotation
marks omitted]). "In situations where an individual has
assumed the role of a father and where the petitioner
putative father has neglected to assume such a role, the
petitioning putative father has been estopped from asserting
a claim of paternity" (id. at 1090 [internal
quotation marks omitted]). "[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, 330).
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 development,
and established a loving father-daughter relationship with
her (see Matter of Carlos O. v Maria G., 149 A.D.3d
945, 946; Matter of Felix O. v Janette M., 89 A.D.3d
at 1091; cf. Matter of Ramos v Broderek, 166 A.D.3d
783, 784). While the petitioner met the child the day after
her birth and spent time with her during her infancy, no
evidence was presented to suggest that the petitioner
established a parent-child bond with the child. Under these
circumstances, we agree with the Family Court's
determination that it was in the child's best interests
to equitably estop the petitioner from asserting his
paternity claim (see Matter of Carlos O. v Maria G.,
149 A.D.3d at 946-947).
we agree with the Family Court's determination granting
the child's motion to dismiss the ...