Linzi W. v John R.

[*1] Linzi W. v John R. 2009 NY Slip Op 52758(U) [26 Misc 3d 1238(A)] Decided on December 28, 2009 Family Court, Monroe County Ruhlmann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2009
Family Court, Monroe County

Linzi W., PETITIONER,

against

John R., SR., RESPONDENT.



P-01487-06



William J. Sedor, Esq. for Petitioner

Michael D. Schmitt, Esq. for Respondent

Legal Aid Society, by Brian A. Strait, Esq., Attorney for the Child

Dandrea L. Ruhlmann, J.

This Court will not vacate an acknowledgment of paternity signed five days after the birth of a now four-and-one-half-year-old child notwithstanding genetic marker test results excluding Respondent as the biological father.By motion filed November 19, 2008 Petitioner Linzi W. seeks vacatur of an acknowledgment of paternity naming Respondent John R., Sr. as the father of John R. Jr. (d/o/b: -//) despite her previous consent to both a joint custodial and child support order.

Five days after John R. Jr.'s birth Petitioner and Respondent formally acknowledged Respondent as the father. Around the child's birth, the Monroe County Department of Human Services filed a child neglect petition against Petitioner that was adjourned in contemplation of dismissal and eventually resolved with a consent order that Petitioner and Respondent share custody of John provided that they both reside with the child's respective grandmothers, Cheryl P. and Elizabeth R.

On January 25, 2006, Petitioner filed a paternity action against Respondent that was dismissed with prejudice on April 13, 2006. Approximately four months later, on August 21, 2006, the parties stipulated to an order of support and by order entered January 3, 2007 the parties consented to a joint custodial order with primary physical residency of John with Respondent. Not until November 19, 2008 did Petitioner move to vacate the acknowledgment of paternity, requesting a Genetic Marker Test (GMT); at the sixth court appearance Respondent consented to a GMT and on August 3, 2009 learned that he is not the biological father of then four-year-old John. [*2]

Respondent argues that the Court should not consider the results of the GMT as the test should not have been administered as a matter of law; and in the alternate that the doctrine of equitable estoppel precludes Petitioner's late motion to vacate the acknowledgment of paternity. Petitioner contends that the results of the GMT coupled with the best interests of the child require vacatur.

Rescinding an Acknowledgment of Paternity

An acknowledgment of paternity. . . may be rescinded by either signator's filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party

(Family Court Act § 516-a [b] [i]). Not only did more than sixty (60) days expire since the date of the acknowledgment but also the parties appeared in court for no less than four proceedings involving John.

After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court by alleging and proving fraud, duress, or material mistake of fact

(Family Court Act § 516-a [b] [ii]). Fraud, duress or material mistake of fact must be proven as a condition precedent to ordering genetic testing ( Matter of Demetrius H. v Mikhaila C.M., 35 AD3d 1215 [4th Dept 2006]), yet Petitioner neither made such allegations in her original petition to vacate paternity nor in the current motion. Petitioner's testimony that she did not sign the acknowledgment of paternity and that she was not present when Respondent signed the acknowledgment was incredible in view of both her failure to raise such allegations in her petition and her own contradictory testimony. The acknowledgment of paternity was signed five (5) days after John's birth and John R., Jr. bears Respondent's name. Petitioner testified that she and John lived with Respondent for two and a half years after John's birth and John has always called Respondent "Poppi" (meaning father in Spanish). At first she conceded that she never raised the issue that Respondent might not be John's father until after she moved out of Respondent's house, yet later testified that since day one she has told John that Respondent is not his father. The petition to vacate the acknowledgment of paternity is hereby dismissed since more than sixty days have passed and not less than four court proceedings held; moreover, Petitioner never alleged fraud, duress or material mistake of fact (Matter of Demetrius H., 35 AD3d 1215; Matter of Mark D. v Marion M., 12 AD3d 1082 [4th Dept 2004]; see Miskiewicz v Griffin, 41 AD3d 853 [2d Dept 2007]).

GMT Results:

Respondent nonetheless consented to a GMT and the parties learned via the test results that Respondent is not John's biological father. Despite Respondent's assent to the GMT this Court need not consider the results if it is not in the child's best interests on the basis of res judicata, equitable estoppel or the presumption of legitimacy (Family Court Act § 418 [a]; Matter of Shondel J. v Mark D., 7 NY3d 320, 329-330 [2006]). Here it is not in the child's best interests on the basis of both res judicata and equitable estoppel.

First, as previously outlined, this Court dismissed with prejudice Petitioner's prior paternity petition on April 13, 2006, more than three years ago. Petitioner did not appeal [*3]that order and that constitutes the law of the case.

Second, equitable estoppel applies as Petitioner has held Respondent out to be John's father since birth and Respondent has relied on Petitioner's actions, including having John in his care a majority of time. Courts are inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship (Matter of Antonio H. v Angelic W., 51 AD3d 1022 [2d Dept 2008]). Petitioner admitted that she consented to a joint custodial order naming Respondent as John's father. She admitted that Respondent has been an active part of John's life since birth. She admitted that she and John lived with Respondent for 2 ½ years after John's birth and John learned to call him "Poppi" - a name she encouraged. She admitted that John and Respondent have a "big bond together" and that "they are very close." Respondent too testified that he has always acted as John's father with Petitioner's knowledge and acquiescence. He takes John to all his doctor's appointments; buys presents for John with cards signing them "Love Daddy" and John and he snuggle in bed nightly (see Matter of Antonio H., 51 AD3d 1022, 1023; Matter of Bruce W.L. v Carol A.P., 46 AD3d 1471 [4th Dept 2007], lv denied 10 NY3d 707 [2008]).

All have held John out to the world as Respondent's son. John is four years old, knows Respondent as his dad and Respondent's family as his extended family. Indeed, Elizabeth R., paternal grandmother, testified that both Respondent and John have lived with her since John was five days old. John calls her "Abuella" for grandmother and calls her husband "Abuello" for Grandfather. She testified that she brings John to all his appointments with Respondent. Mrs. R testified that they have aunts and uncles who John refers to as "Tio" (uncle) and "TiTi" (aunt) and that John considers their children his cousins (see Matter of Jose F.R., 46 AD3d 564 [2d Dept 2007] [subject child had developed relationships with members of the extended family]; Matter of Sarah S. v James T., 299 AD2d 785 [3d Dept 2002] [child visits regularly with respondent's grandparents, calls them "grandma" and "grandpa" and has a nephew-uncle relationship with respondent's brothers, one of whom is his godfather]).

Petitioner contends that Respondent does not properly care for John and that it "may" not be in John's best interests to continue to know Respondent as father. The doctrine of equitable estoppel may be applied to prevent a party from challenging an acknowledgment of paternity only where the application of the doctrine will further the best interests of the child (see Matter of Martin G.D. v Lucille A.F., 35 AD3d 1280 [4th Dept 2006] where the New York State Supreme Court, Fourth Department remanded a paternity action to Family Court where although Petitioner-father previously acknowledged paternity, results of a DNA test excluded Petitioner as the biological father and all - including Respondent-mother - consented to vacatur. There, an expert psychologist testified that the parental relationship had been "demolished" and that further contact with Petitioner-father would be damaging to the child).

Here Petitioner and maternal grandmother Mrs. P testified generally that they do not approve of Respondent's parenting, yet did not produce evidence showing that a continued relationship with Respondent would be damaging to John (see Matter of Bruce W.L. v Carol A.P., 46 AD3d 1471 [4th Dept 2007], lv denied 10 NY3d 707 [2008]). To the contrary, Mrs. P admitted that even if paternity is vacated, she would continue to allow Respondent to visit John as John considers Respondent his father. She testified of her frustration that Respondent is not truly parenting but instead paternal grandmother Mrs. R is raising John. [*4]She did not approve of both the baby formula that Mrs. R gave John and that Petitioner, Respondent and Mrs. R bicker frequently. She observed John after a visit with Respondent to have bite marks and bruises, including a boot mark on his back.

Petitioner further testified that John has reported to her both that Respondent told him he would be a gangster when he grows up and put a cigarette in his mouth. Petitioner also testified that Respondent hits and curses at John and he has called her telling her "come get my white trash son." Petitioner testified that the other man who may be John's father is Richard R. who is incarcerated for life.

Mrs. R, paternal grandmother, testified that she is a licensed daycare provider and a mandated reporter and has no concerns about John. She testified that she observed John to be in need of services and received a referral from the Rochester City School District to Rochester Child First where John currently attends preschool and receives speech and occupational therapy. She and Respondent make certain that John attends school Monday to Thursday but that when Petitioner has John on Fridays he does not attend. She admitted that Respondent is "mentally mildly retarded" but that he does care for John, bathing, feeding and getting him ready for bed. Although Petitioner and Mrs. P testified that John gets to sleep too late while in Respondent's care, Mrs. R maintained that they put John to sleep by 9:00 p.m. and that he wakes between 8:00-9:00 a.m.

True that Respondent does appear to be in need of parenting skills but by no means does the testimony of Petitioner and Mrs. P rise to the level of indicating that John's relationship with Respondent is "damaging," especially absent expert testimony, (Matter of Bruce W.L. v Carol A.P., 46 AD3d 1471; Matter of Martin G.D. v Lucille A.F., 35 AD3d 1280) and Respondent and Mrs. R's testimony to the contrary. Resolution of issues of credibility as well as the weight to be accorded the evidence are questions to be determined by Family Court - the finder of fact - which saw and heard the witnesses (see generally Matter of Kayla C., 35 AD3d 1187 [4th Dept 2006]). Here while Petitioner and Respondent themselves are not the most credible witnesses, both Mrs. P and Mrs. R are credible. Most compelling, Mrs. P admitted that since the GMT results she has defied court order and kept John away from Respondent and Mrs. R. Mrs. R emphasized that John has told her that he does not want to "lose [his] family."

Crucial it is in John's best interests that both res judicata and equitable estoppel prevent vacatur of the acknowledgment of paternity. The Attorney for the Child advocates that the parties work together and put an end to the questioning of paternity. John shall not lose his family, including Respondent (the only father he knows - and has, considering that his other potential father is serving a life sentence in prison). Petitioner's motion is denied and the parties are ordered to comply fully with the current custody and visitation order.

NOW, therefore, it is hereby

ORDERED that Petitioner's motion is denied.

Dated this 28th day of December, 2009, at Rochester, New York.

___________________________

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

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