Recent
Appellate Division Cases on Paternity Estoppel
by
George E. Reed,
Jr.
---------------------------------------------------------------------------------------------------------
Cases
through January 3, 2012.
For
Court of Appeals cases during same period, see article by Michele A. Brown,
Esq., in this coursebook.
Also
see explanatory notes at end of this article.
---------------------------------------------------------------------------------------------------------
(I) Estoppel
father declared to be father (or challenge to him dismissed)
Petitioner
is estoppel father.
His petitions granted without hearing.
Mother
permitted the petitioner to hold himself out as the children's biological
father and permitted them to develop a parent-child relationship. She also
allowed the children to develop a relationship with the paternal
grandmother. When twins were
approximately age 10, after the mother began to keep the children away from the
petitioner, he filed for paternity. The Supreme Court applied the doctrine of
equitable estoppel in adjudicating that the
petitioner was the father of the children.
Affirmed;
hearing was not required. Seth P. v. Margaret D., -- A.D.3d – (2d
Dep’t Dec. 27, 2011).
Respondent
is estoppel father.
Mother's paternity petition against putative father, granted based
on estoppel.
Child always called appellant Dad, and wanted a relationship with
him.
App.
Div. affirms. Wanda M. v.
Petitioner
seeking to vacate acknowledgment of paternity is estoppel
father.
Man named on birth certificate petitions to
vacate acknowledgment of paternity, child now age 3. Child "is bonded to petitioner, who is
the only father the child has ever known."
Family Court (Judge Duggan) denied a DNA test on ground of estoppel, affirmed. Savel v. Shields, 58 A.D.3d
1083 (3d
Respondent
is estoppel father; there was an operative father-child
relationship even if somewhat limited. (Multiple
cases)
DSS petition for paternity. Child age 13, calls putative father “Dad.” Family court orders filiation
without a GMT. Affirmed.
C.S.S.
v. Victor C., -- A.D.3d – (1st Dep’t Jan. 3, 2012).
Appeal by LG. The putative father and the child, who was
15 years old at the time these proceedings commenced, had established a
parent-child relationship and the child had developed relationships with
members of his family. From these facts, the Family Court should have found
that there was sufficient evidence of harm to the child since the child. Under
these circumstances, the evidence indicating that the parent-child relationship
was somewhat limited did not preclude the application of the doctrine of the
equitable estoppel. App Div reverses and remands for
a new hearing on estoppel. Smythe v. Worley, 72 A.D.3d 977 (2d
Typical paternity
petition (mother vs. putative father), no other man alleged. Child age 14, called
appellant Dad. Affirmed even though
appellant's parental role was "somewhat limited" (saw child every few
months and bought him clothing). Glenda G. v. Mariano M.,
62 A.D.3d 536 (1st
Respondent
is estoppel father.
Appeal by estoppel
father. Estoppel
affirmed, no discussion of facts. Lisa C. v. Steven T., 71 A.D.3d 886 (2d Dep’t 2010).
Petitioner
is probably bio father, but another man is estoppel
father.
Alleged bio father
petitioned for paternity. Child age
7. Estoppel
father moved to dismiss. Even though he
knew he was not the bio father, he had acknowledged paternity and acted as
father throughout. Reversing Family
Court, App Div grants estoppel father's motion to
dismiss alleged bio father's paternity petition. Dustin G. v. Melissa I., 69 A.D.3d 1019 (3d Dep’t 2010).
Petitioner
is probably bio father, but boyfriend is estoppel
father.
All
possible fathers should be parties.
Probable
bio father petitions against mother for paternity of child age 10. Family Court dismisses petition. “In support of her motion, the mother asserts
that at the time the child was born, she was living with her boyfriend, with
whom she and the child currently reside, and her boyfriend has acted as the
child's father throughout the child's life, providing her with food, clothing
and necessities. In addition, the child refers to the boyfriend as her father,
the boyfriend has supported the child in school and in her everyday activities,
and the mother believes the boyfriend to be the father of the child as well as
the father of their two younger sons, ages nine and six. Notably, the child
bears the boyfriend's surname. 1
[1
Clearly, the boyfriend should have been named as a necessary party (see Matter of Juanita
A. v Kenneth Mark N., 15 NY3d 1, 6 [2010]; Matter of Richard
W. v Roberta Y., 212 AD2d at 90-92). However, we find that, on the
record before us, the oversight does not undermine the correctness of Family
Court's order dismissing the petition.]
App.
Div. affirms dismissal of petition. Edward WW v. Diana XX, 79
A.D.3d 1181 (3d
Petitioner
male is not estoppel father; he
was not involved with child; apparent
bio father was.
Here, the petitioner commenced this proceeding after he had been
arrested and charged with murdering the subject child's mother. The petitioner was subsequently convicted, inter alia, of murder
in the first degree and sentenced to life in prison without the possibility of
parole. The evidence established that the six-year old subject child had a relationship
with a person identified by her deceased mother as her biological father. Accordingly,
the petitioner failed to identify any benefit that would accrue to the subject
child if the petition were granted.
Since the Family Court was presented with sufficient information to make
a determination as to the subject child's best interests, the Family Court
properly granted the motion of the attorney for the child to dismiss the
petition on the ground of equitable estoppel without
conducting a hearing. Leonardo Antonio V. v. Estate of Joanna B.,
82 A.D.3d 1253 (2d
Petitioner biological father has petition dismissed; another man is estoppel father.
Appeal by bio father (DNA test positive) from
order dismissing his paternity petition on ground another man was estoppel father.
Affirmed; it would be
detrimental to the child's interests to disrupt her close relationship with
respondent Wayne N., whom she knows as her father and whose actions established
a close parental relationship with her. Fidel A. v. Sharon N., 71
A.D.3d 437 (1st
Petitioner putative father in prison; fiance
would be estoppel father.
Putative
father serving a 32-year sentence files for paternity of child age 10. “[T]h e attorney for the child met with the
subject child and observed that the subject child considered the mother's fiance, with whom he and the mother have resided since
2003, to be his father." Note use of LG’s
hearsay as to child. Family Court
dismisses petition without a hearing, App. Div. affirms. Willie W. v. Magdalena D., 78 A.D.3d 958 (2d
(II) Estoppel
not found.
No
evidence to support estoppel.
Acknowledgment father files pursuant to FCA §516-a to vacate his acknowledgment of paternity. Family Court, the
petitioner appeals from an order of the Family Court, which dismissed his
petition after a hearing. App.
Div. reverses dismissal, reinstates the petition and remits to Family
Court. The petitioner established that
he executed the acknowledgment of paternity based upon a material mistake of
fact. The Family Court improvidently
exercised its discretion in concluding that, nonetheless, the petitioner was estopped from denying his paternity of the child. The hearing evidence demonstrated that no
parent-child relationship existed between the petitioner and the subject
three-year-old child, who had only limited contact with the petitioner during
the first 18 months of her life, and virtually no contact thereafter. Derrick H. v. Martha J., 82 A.D.3d 1236 (2d Dep’t 2011).
Four-month
relationship is not estoppel.
Bio father petitions for paternity, GMT is positive. Mother and LG appeal, presumably because
petitioner committed domestic violence against mo and was incarcerated for two
years for same. Child age 4 at time of
Family Court order.
"Furthermore, contrary to the contention of respondent and
the attorney for the child, the child's four-month relationship with
respondent's fiance is not sufficient to warrant application
of estoppel."
* * *
Finally, inasmuch as the genetic marker test results were
certified in accordance with CPLR 4518 (d)
and respondent failed to file written objections to those results, they were
properly admitted into evidence without the need for foundation testimony or
further proof of authenticity or accuracy (see CPLR 4518 [e];
see also Matter of
Department of Social Servs. v John James H., 249 AD2d
545, 545-546, 672 N.Y.S.2d 372 [1998]).
App. Div. affirms. Note
that this decision suggests that estoppel is not synonymous
with best interests. Stephen W. v. Christina X., 80 A.D.3d
1083 (3d
No estoppel hearing
because no estoppel father (except possibly bio
father himself).
Mother files paternity
petition against actual bio father (DNA positive) when child is age 9. Bio father has had no
involvement and argues there should have been an estoppel
hearing. No indication of any estoppel father; mother had told child at age 5 that
appellant was his father. Filiation and other orders affirmed. Saragh Ann K.v. Armando
Charles C., 67 A.D.3d 537 (1st
Respondent
man raises estoppel as defense. GMT nevertheless ordered.
Petition of mother vs.
putative father. Family Court ordered GMT; App. Div.
affirms. "Under the unusual
circumstances of this case, the appellant failed to allege facts sufficient to
warrant a hearing on his equitable estoppel
defense."
(Opinion
does not explain who was claimed to be an estoppel
father).
Marilene S. v. David H., 85 A.D.3d 1035 (2d
(III) Further proceedings required.
Respondent
male asks for GMT. In
camera required.
On behalf of the mother, who lives in
(Note: this was an interim appeal from the order to
produce child for in camera from
3-year-old
child would cry, say acknowledgment father was not her
father. Remand for psychiatric
evaluation.
Acknowledgment father petitioned to vacate acknowledgment of
paternity. Family Court denied
petition. Petitioner testified, and it
appears to be undisputed, that when the child was approximately three years
old, the child would cry during visits with petitioner and say that petitioner
was not his father. According to petitioner, his relationship with the child
appeared to be "going backward" and the child indicated he did not
want to be with petitioner. Under all the relevant circumstances, Family Court
erred in determining that the question of equitable estoppel
could be resolved without a psychiatric evaluation of the parties and the
child. App. Div. reverses, remands for hearing before a
different judge. Troy V.G. v. Tysha
M. McG., 79 A.D.3d 606 (1st
Estoppel issue not reached yet; hearing requied on vacatur of
acknowledgment of paternity.
Mother
petitioned to vacate an acknowledgment of paternity on ground of duress; Family Court
dismissed the petition; App. Div.
reverses. GMT has been done and shows a
different man to be the bio father. Jeannette GG v. Lamont HH, 77 A.D.3d 1076 (3d Dep’t 2010).
A 3-father case. Remand
for hearing on both estoppel and presumption of
legitimacy.
A 3-father case. Mother was married at time
of child's birth. Child grew up with
mother's paramour acting as her father.
Now comes an alleged bio father and files for
paternity. Family Court orders a DNA
test, but App. Div. reverses and remands a hearing as both estoppel
and the presumption of legitimacy. Tracy C.O. v.
(IV) Marriage
Petition
of alleged biological father;
marriage.
Alleged
bio father, not the husband, petitioned for paternity of child (presumably)
born to marriage. AD reverses order for GMT (which was stayed) and dismisses
petition. Child called husband “Dad.”
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 care and schooling, and established a loving father-daughter relationship
with the child over the first 4 1/2 years of her life prior to the filing of
the petition. Further, it is uncontested that the father-daughter relationship
between the husband and the child continued to exist at the time of the
hearing, and that the child refers to him as "pop, father, dad, [or]
poppy." Felix O. v. Janette M., --
A.D.3d – (2d Dep’t Nov. 29, 2011)
DSS’s petition sustained without hearing on ground of estoppel;
marriage.
The
children, all of whom were conceived and born during the marriage, are presumed
to be the legitimate children of the mother and her husband (see DRL §240[1]).
Moreover, under the particular circumstances of this case, the Family Court
properly applied the doctrine of equitable estoppel
and concluded, without a hearing, in effect, that it was in the best interest of the children to
preserve their status as legitimate. Accordingly, the Family Court properly,
without a hearing, in effect, granted the motion of the DSS pursuant to CPLR
3211(a)(7) to dismiss the petitions.
(App
Div affirms dismissal of paternity petitions without any detail as to the
nature of the estoppel, just referring to the marital
status.) Carl Henry P. v. Tiwiana
L., 82 A.D.3d 1245 (2d
Petition
of alleged bio father for paternity; marriage; dismissed even though mother recently told
child there was an issue.
Alleged bio father
petitioned for paternity of
(presumed) child of married couple. Child age 10.
Child has marital surname, and always believed mother's husband was her
father, although recently told by mother there was an issue. Petition dismissed, affirmed.
App. Div. also notes
that the appellate LG had not met with or spoken with child, and had replaced
the LG. (No indication of what LG should
say to child, but in view of mother's disclosure of issue to child, there would
be no reason not to have fully disclosed conversation). Mark T. v. Joyanna U., 70 A.D.3d 1068 (3d Dep’t 2010).
Marriage
presumption overcome;
couple had split around time of conception; another man is estoppel
father.
Estoppel father's paternity
petition was granted by Family Court, even though mother was married to another
at time of conception. Husband
petitioned for paternity, but failed to appear and his petition was dismissed
on default. Husband then appealed from estoppel father's order of filiation,
as non-party appellant. Order of filiation in effect affirmed (dismissal of appellant's
motion converted to a denial). Married
parties had split at or before time of conception, and estoppel
father had been permitted to take on responsibilities of fatherhood. Jason E. v. Tania G., 69 A.D.3d 518 (1st
Children
called petitioner Daddy;
marriage.
An estoppel
substitute case. Man petitions for
paternity of two children of a married mother.
Mother claims estoppel should be involved to
prevent man from asserting paternity.
But man was full involved, and the operative parental relationship was
between man and children. Children
called him Daddy. Granting of paternity
to man was affirmed, in order to accomplish the same result usually reached by estoppel. Marilyn C.Y. v. Mark N.Y.,
64 A.D.3d 645 (2d
Note:
The
following terms are used in this article as shorthand. Except for “husband”, they are not legal
terms or in general use:
acknowledgment father – man who has signed an acknowledgment of paternity.
estoppel father – man who presents as
father by virtue of his involvement with child, not necessarily believed by the
adults to be the biological father.
husband – man who was married to child’s mother at time of birth or
conception
LG –
attorney for the child (abbreviation used because it is more easily
recognizable)
Daddy
rule:
In
almost[1]
every case where it is recited that a child calls a man “Daddy” or “Dad”, that
man will be the legal father (or at least any other man will be rejected as a
possible father).
That
finding appears to be more conclusive than an acknowledgment of paternity or a
marriage.
Observation
based on search for: paternity /50 estop! AND dad!
[1] In Richard B. v. Sandra B.B., 209 A.D.2d 139 (1st Dep’t 1995), the husband/father seeking to vacate the child support provisions of his recent divorce judgment claimed the child called the mother’s paramour Daddy, but nevertheless lost; there is no indication whether that claim was credited.
Last Updated January 4, 2012
Links to other sites, or links to this site from any other sites,
do not imply any endorsement of, or relationship with, such other sites.