Matter of Angel S. v Teresa B.

[*1] Matter of Angel S. v Teresa B. 2009 NY Slip Op 52149(U) [25 Misc 3d 1216(A)] Decided on July 28, 2009 Supreme Court, Kings County O'Shea, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2009
Supreme Court, Kings County

In the Matter of a Paternity Proceeding, Angel S., Petitioner,

against

Teresa B. Victor G. Raphael B., Respondent.



P-29361-08



The parties appeared pro se.

Ann E. O'Shea, J.

This matter is before the Court on an objection by respondent Victor G. to an order of the Support Magistrate dated March 19, 2009.

Petitioner (the "alleged father") commenced this action against respondent (the "mother") on September 16, 2008, by filing a petition alleging that he is the father of J.G., born on March 29, 2004.On the return date, both parties appeared. After hearing testimony concerning the mother's marriage to Raphael B. (the "husband") at the time of the conception and birth of the subject child, and the fact that another man, Victor G., (the "acknowledged father"), signed an acknowledgment of paternity and is known by the child as her father, the Support Magistrate added the acknowledged father as an "interested party" and the husband, as a "necessary party" to the petition, and issued process as to both. Although the Support Magistrate noted on the endorsement that the acknowledgment of paternity was "void ab initio" on account of the mother's marriage to the husband, no order vacating the acknowledgment was issued on this date. The matter was adjourned to January 21, 2009.

On January 21, 2009, the alleged father, the mother, and the acknowledged father appeared. As the husband had not as yet been served, the matter was adjourned to March 19, 2009, with a second notation on the endorsement that the acknowledgment of paternity "will need to be vacated, because it is void ab initio."

On March 19, 2009, the alleged father, the mother and the acknowledged father each appeared. The husband had not been served, and did not appear. In response to a question from the Support Magistrate concerning whether or not the husband had been contacted, the mother handed up a copy of the divorce judgment, and reported that the husband told her, when he came to court for the divorce, that he would not be able to come back. After examining a copy of the judgment of divorce in which it is noted that there are no minor children of the marriage, the Support Magistrate declared the presumption of legitimacy rebutted, and stated that the husband was no longer a necessary party to the proceeding. The Support Magistrate also sua sponte vacated the acknowledgment of paternity on the grounds that the acknowledgment was "void ab initio" and could not be used as a device to displace the husband as the legal father of the child. Then, after eliciting further testimony concerning Mr. G.'s relationship with the child, including the fact that he has raised J.G. — now five years old — since she was born, J.G. considers him her father and calls him "Daddy, " Mr. G., the mother, and J.G. all live together with two other children of the relationship whom the child considers her siblings, the Support Magistrate referred the matter to Part 9 to address estoppel issues.

On April 20, 2009, the acknowledged father timely filed objections to the Support Magistrate's final order. In his objections, the acknowledged father contends that (1) the Support Magistrate erred in determining to vacate the acknowledgment of paternity before Mr. G. was either served, or appeared in the action; (2) the Support Magistrate erred in failing to include Mr. G. as a "necessary party" to the proceeding; and (3) the Support Magistrate lacked authority to vacate the acknowledgment of paternity, and should have referred the entire contested paternity matter to a Judge for determination of all of the issues, including equitable estoppel. Petitioner filed no rebuttal.

Family Court Act [hereinafter cited "FCA"] § 439(a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the court" in proceedings properly before them. FCA § 439(e) provides that the Support Magistrate's determination "shall include findings of fact and a final order." The parties are permitted by the statute to submit "specific written objections" to the order for review by a Family Court judge.

The Family Court judge's review of objections is a narrow one. It is the Support Magistrate, and not the reviewing judge, who was present at the evidentiary hearing and who was, therefore, uniquely able to evaluate both the evidence and the credibility and demeanor of witnesses prior to making an order (see Maddox v. Doty, 186 AD2d 135 [2d Dept 1992]). Given this, the scope of the Family Court judge's review is confined to an inquiry into whether the Support Magistrate has made the necessary findings of fact and whether, upon review of the record, there is a reasonable basis for the Support Magistrate's order.

Upon review of the record provided to the Court, the Order issued by the Support Magistrate, and the objections filed by Mr. G., this Court sustains his objections for the reasons stated below. [*2]

(1)Respondent's contention that the Support Magistrate erred in sua sponte determining to vacate the acknowledgment of paternity is sustained.

A properly executed and filed acknowledgment of paternity is conclusive on the issue of paternity unless a proceeding is commenced and the acknowledgment is vacated by a court (Fam. Ct. Act § 516-a [a][McKinneys].[FN1] The signatories themselves may commence such a proceeding within 60 days, rescind the acknowledgment of paternity, and seek a DNA test (Fam. Ct. Act § 516-a [b][i][McKinneys]. Alternatively, in any administrative or judicial proceeding relating to the child involving one of the signatories (such as a support or paternity proceeding), the acknowledgment may be rescinded and a DNA test sought, if such a proceeding is commenced within 60 days of the execution of the acknowledgment [id].

After the expiration of 60 days, either signatory may challenge the acknowledgment in court by alleging and proving fraud, duress or material mistake of fact (Fam. Ct. Act § 516-a [b][ii][McKinneys]. In any such proceeding, a law guardian must be assigned to protect the interests of the child, (see e.g., Matter of Troy D.B. v. Jefferson County Dept. of Social Services, 42 AD3d 964, 965 [4th Dep't 2007]; Matter of Darlene L.-B. v. Claudio B., 2006 NY Slip Op 1804, 1 [2d Dep't 2006]). The acknowledged father should also be advised of his right to counsel, including assigned counsel if indigent, and the right to seek an adjournment to confer with counsel if he wishes (see Fam. Ct. Act § 262[a][iii][McKinneys]). If the challenger proves to the court that the acknowledgment of paternity was signed under fraud, duress, or due to a material mistake of fact, the court is required to order DNA tests to determine the child's paternity. No such test shall be ordered, however, 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 (Fam. Ct. Act. § 516-a [b][ii] [McKinneys]; see also Matter of Martin G.D. v. Lucille A.F., 2006 NY Slip Op 9912, 1 [4th Dep't 2006]).

Here, the Support Magistrate erred in vacating the acknowledgment of paternity on his own initiative, in the absence of the acknowledged father, and without a finding based upon proper statutory grounds. After the expiration of 60 days from the date of the execution of the acknowledgment, vacatur is only permitted upon application of one of the signatories [FN2] (see Fam. Ct. Act. § 516-a [b][ii] [McKinneys]; cf. Muka v. Cohn, 146 AD2d 826, 827 [3d Dep't 1989]). As the court's authority to vacate the acknowledgment is conditioned upon an application by one of the signatories, and as only one of the signatories was present in court that day, and as neither signatory ultimately desired the vacatur of the acknowledgment, the Support Magistrate erred in taking matters into his own hands. [*3]

Additionally, the Support Magistrate erred in determining to vacate the acknowledgment of paternity without affording the acknowledged father an opportunity to defend his status as the legal father of the child. An acknowledgment of paternity is the functional equivalent of an order of filiation (e.g., Pub Health § 4135 [McKinneys]["signing of the acknowledgment of paternity by both parties shall have the same force and effect as an order of filiation"]). Thus, the acknowledged father is as much a legal father to the child as any father so-declared by the Court. As such, he should have been served and, upon his appearance, offered counsel to defend his status as the child's legal father (see Fam. Ct. Act § 262[a][iii][McKinneys]), well prior to a determination to vacate the very acknowledgment that made him the child's legal father in the first instance. Here, this did not occur. The Support Magistrate determined to vacate the acknowledgment before the acknowledged father appeared, and although the order itself was not entered until after his appearance, the acknowledged father was not given the opportunity to defend his status, nor offered counsel or the opportunity to retain counsel, before the vacatur of the acknowledgment.[FN3]

Finally, the Support Magistrate also erred in concluding that the acknowledgment of paternity was "void ab initio" based on the marital status of the mother. The only statutory grounds for vacating a properly executed and filed acknowledgment are fraud, duress or material mistake of fact. The presumption of legitimacy that attaches to the mother's status is none of these things. Nor is it, independently, grounds for vacating an acknowledgment of paternity as it is an evidentiary presumption, not a rule of substantive law (see Matter of Marilene S. v. David H., 2009 NY Slip Op 5144, 2 [2d Dep't June 16, 2009]); Hansom v. Hansom, 75 Misc 2d 3, 8 [Fam. Ct. Richmond Co. 1973]), and may be rebutted in any number of ways, including, inter alia, the presentation of evidence that the child's mother and another man signed an acknowledgment of paternity (see Fitzsimmons v. De Cicco, 44 Misc 2d 307, 311 [Fam. Ct. Ulster Co. 1964]).[FN4]

As the Support Magistrate lacked the authority, in the first instance, to vacate the acknowledgment of paternity on his own initiative, and as the acknowledged father was not accorded the opportunity to defend his status as the legal father of the child prior to the determination to vacate the acknowledgment, and as the Support Magistrate's conclusion that the acknowledgment was void ab initio based on the marital status of the mother was in error, respondent's objection is sustained, the acknowledgment of paternity is reinstated, and the matter [*4]is adjourned for a hearing on the issues raised.

(2)Mr. G.'s contention that Support Magistrate erred in failing to include him as a "necessary party" to the proceeding similarly is sustained. As the legal father of the child by virtue of the execution of the acknowledgment of paternity, (e.g., Pub Health § 4135 [McKinneys]), and as the person J.G. considers to be her father, Mr. G. is a "necessary party" in any subsequent proceeding concerning paternity (see Matter of Isaiah A.C. v. Faith T., 2007 NY Slip Op 6871 [2d Dep't 2007]; Tyrone G. v Fifi N. 189 AD2d 8, 16 (1st Dep't 1993); CPLR § 1001 [McKinneys]). Accordingly, respondent's contention that the Support Magistrate's erred in denominating him an "interested party" rather than a "necessary party" is sustained.

(3)Respondent's contention that the Support Magistrate erred in failing to refer the entire matter to a judge is also sustained.

In a paternity action, a Support Magistrate is empowered to hear, determine and grant any relief within the powers of the Court, except contested paternity actions "involving claims of equitable estoppel ... as a defense" (Fam. Ct. Act § 439(a)(McKinneys). As a case involving a myriad of potential claims of equitable estoppel as a defense,[FN5] this case falls squarely within the exception, and should immediately have been referred to a judge for determination. The Support Magistrate's attempts to parse out issues concerning the presumption of legitimacy and the validity of the acknowledgment of paternity, as if they were separate issues without equitable estoppel implications, was in error and contravened the express policy of the legislature to avoid the fragmentation of paternity claims (see Fam. Ct. Act § 439, 2004 Recommendations of the Family Court Advisory and Rules Committee [McKinneys]). Accordingly, Respondent's objection to the determination of the Support Magistrate is sustained, and the entire matter is adjourned for a hearing on the issue of paternity and all applicable defenses, including the presumption of legitimacy and equitable estoppel.

In this regard, it might properly be noted that the Support Magistrate erred in determining that the presumption of legitimacy was rebutted by the divorce judgment declaring that there are no minor children born to the parties, as the divorce was granted on the default of the husband, paternity of the child was not litigated in that proceeding, and it is doubtful that the court was apprised by the mother that a child was born during her marriage (see e.g., Backus v. Backus, 72 AD2d 893, 894 [3rd Dep't 1979]). As no order was issued dispensing with the appearance of the husband, he remains a necessary party to these proceedings. New service shall issue upon the husband forthwith.

The Court shall notify petitioner, respondent mother, respondent husband, respondent [*5]acknowledged father and his counsel, the registrar of the district in which the child's birth certificate is filed, the putative father registry, and Support Magistrate Spegele, of its decision.

ENTER:

___________________________________ANN ELIZABETH O'SHEA A.J.S.C. Footnotes

Footnote 1:See Fam. Ct. Act. § 516-1[a](McKinney) ("An acknowledgment of paternity . . . shall establish the paternity of and liability for the support of a child pursuant to this act")(emphasis added).

Footnote 2:If the signatory is deceased, becomes mentally ill, or cannot be found in the state, anyone who can commence a paternity petition may stand in his or her stead (see Fam. Ct. Act. § 516-a [b][ii] [McKinneys]: see also Matter of James T. H. v. Danielle M. K-R, 2008 NY Slip Op 1543, 1 [2d Dep't 2008]).

Footnote 3:Similarly absent in the proceeding was a representative of the child. In any proceeding involving the potential vacatur of an acknowledgment of paternity, a law guardian must be assigned to protect the interests of the child (Matter of Troy D.B. v. Jefferson County Dept. of Social Services, 42 AD3d 964 [4th Dep't 2007]; Matter of Darlene L.-B. v. Claudio B., 2006 NY Slip Op 1804, 1 [2d Dep't 2006]).

Footnote 4:The presumption may retain some measure of vitality if fraud, duress or material mistake of fact are demonstrated, and the acknowledgment is vacated, as it remains an affirmative defense to DNA testing, should a court determine, based upon the presumption of legitimacy, that it would be contrary to the child's best interests for such test to take place (Fam. Ct. Act. § 516-a [b][ii] [McKinney]).

Footnote 5:Equitable estoppel is a defense to DNA testing in any case involving the potential vacatur of an acknowledgment of paternity (see Fam. Ct. Act § 516-a [McKinneys]). Even in the absence of the acknowledgment, as the person who has raised this child for the last 5 years, Mr. G. may assert equitable estoppel as a defense against any claim by the mother that someone else is the child's father ( e.g., Michel DeL. v. Martha P., 173 AD2d 308, 309 [1st Dep't 1991]), any claim by the alleged father that he should be named the legal father of the child (e.g., In re Ellis v. Griffin, 308 AD2d 449 [2d Dep't 2003]), and potentially any claim of the husband that he is actually the legal father of this child(see Matter of Marilene S. v. David H., 2009 NY Slip Op 5144, 2 [2d Dep't June 16, 2009]).