Walter G. v. Isabel L.A.

179 A.D.3d 680

118 N.Y.S.3d 42

In the Matter of WALTER G. (Anonymous), Sr., Appellant,

v.ISABEL L.A. (Anonymous), Respondent;

Charles A. (Anonymous), Nonparty-Respondent.

2019–06132

2019–06133

Docket No. P–14942–18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 18, 2019

January 8, 2020

Law Office of Lance H. Meyer, Esq., PLLC, Lake Success, NY, for appellant.

Larry S. Bachner, New York, NY, for nonparty-respondent.

Adewole Agbayewa, Fresh Meadows, NY, attorney for the child.

MARK C. DILLON, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

In a 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.

ORDERED that the orders are affirmed, without costs or disbursements.

In July 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.

Pursuant 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 § 532[a] ).

" ‘A 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 C.T. v. Ricardo R.E., 172 A.D.3d 726, 728, 99 N.Y.S.3d 374, quoting David L. v. Cindy Pearl L., 208 A.D.2d 502, 503, 617 N.Y.S.2d 57 [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 C.T. v. Ricardo R.E., 172 A.D.3d at 728, 99 N.Y.S.3d 374, quoting Matter of Barbara S. v. Michael I., 24 A.D.3d 451, 452, 805 N.Y.S.2d 425 ). 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, 20 N.Y.S.3d 145 ; Matter of Barbara S. v. Michael I., 24 A.D.3d at 453, 805 N.Y.S.2d 425 ).

We 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, 934 N.Y.S.2d 424 [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...