Matter of Justin P. v Jennifer L.

[*1] Matter of Justin P. v Jennifer L. 2011 NY Slip Op 52465(U) Decided on December 13, 2011 Family Court, Madison County McDermott, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2011
Family Court, Madison County

In the Matter of a Proceeding under Article 5 of the Family Court Act Justin P., Petitioner

against

Jennifer L., Respondent.



P-240-11



Jennifer L., Respondent, pro se

Richard A. Cohen, Esq., for the Petitioner

Sheila K. Ben, Esq., for the Child.

Dennis K. McDermott, J.

Madison P. was born out of wedlock to the respondent, Jennifer L. Two days later, petitioner, Justin P., claiming that he relied on the mother's unequivocal assurance that there was "no question" that he was the child's father, acknowledged paternity in writing. On December 21, 2010, the parties appeared in this court and stipulated to an order (Docket No. V-1920-10) that awarded them joint custody of the child, primary physical placement with the mother and weekend visitation [*2]for the petitioner.

On February 14, 2011, the petitioner filed this petition seeking to vacate the acknowledgment of paternity on the basis that in late January the mother revealed to him for the first time that she had been engaged in a sexual relationship with another man as well as with him at the time the child was conceived and that it is, in fact, the other man who is the child's father. The mother has appeared but has waived her right to counsel and does not oppose the petition or take issue with any of the allegations of fact in the petition.

After the matter was referred to the undersigned by the Support Magistrate but before the initial appearance, the parties and the child evidently submitted to a genetic marker test without any court order. The petitioner claims he saw the test results on August 10, 2011 and, except for a very brief encounter by chance, that he has had no contact with the child since then.[FN1]

While the mother does not oppose the petition, the attorney for the child does. The father's allegations of fact contained in his petition have not been disputed by the mother or otherwise put in issue. The child's attorney has no first-hand knowledge of any contrary facts, and so the relevant facts are undisputed. Those facts demonstrate that the mother, well aware of her sexual involvement with another man, falsely assured the petitioner that there was "no question" that he was the father. Relying on that assurance, and with no knowledge of the mother's relationship with any other man, the petitioner signed the acknowledgment of paternity. This is enough to satisfy the first step of the procedural requirement set forth in Family Court Act § 516-a (b) (ii) that the court determine first whether the petitioner has any grounds that would warrant granting the relief sought.

The child's attorney argues that the court cannot make such a finding of fraud in the absence of a hearing, citing, as authority, Westchester County Dept of Social Services v. Robert W. R., 25 AD3d 62 (2d Dept 2005) and Matter of Demetrius H. v. Mikhaila C.M., 35 AD3d 1215 (4th Dept 2006). Unlike those cases, however, the situation here involves undisputed facts. Once the moving party (here, the petitioner) establishes his entitlement to judgment as a matter of law, the burden then shifts to the opposing party to establish, by admissible proof, that some genuine issue of a material fact exists. Card v. Brown, 43 AD3d 594 (3d Dept 2007); Chunn v. Carman, 8 AD3d 745 (3d Dept 2004). Nothing submitted by the child's attorney demonstrates the existence of any genuine issue of fact. Thus, there is no need for a fact-finding hearing on the issue of fraud.

Having concluded that the petitioner's acknowledgment of paternity was the result of fraud on the mother's part, the court now turns to the position advanced by the child's attorney that the petitioner should be equitably estopped from denying paternity. Matter of Jeannette GG. v. Lamont HH., 77 AD3d 1076, 1078-1079 (3d Dept 2010). [*3]

Here, it is undisputed that the child is presently fifteen months old. The father avers that he has had no contact of any significance with the child since August, 2011 when the child was only eleven months old. The mother does not dispute this. Equity will estop a putative father from denying paternity where he has established a relationship with the child and allowed the child to form an emotional bond with him. It is the child's reliance on the putative father's representation that he is the father that will later preclude the putative father from seeking to renounce the relationship to the child's detriment. Matter of Dustin G. v. Melissa I., 69 AD3d 1019 (3d Dept 2010), lv. denied 14 NY3d 708 (2010); Matter of Stephen W. v. Christina X., 80 AD3d 1083 (3d Dept 2011).

The child's attorney argues that Family Court Act § 516-a (b) (ii) requires the court to hold a hearing on this issue. A literal reading of the statute, however, shows only that the court cannot order a genetic marker test or DNA test if it makes a determination that such a test would not be in the child's best interest based on various considerations including equitable estoppel. The statute does not mandate that such a determination be made only following a hearing. The claim of equitable estoppel may be determined on the papers and without a hearing if the court possesses sufficient information to make a determination consistent with the child's best interest. Matter of Edward WW. v. Diana XX., 79 AD3d 1181 (3d Dept 2010).

Here, it is undisputed that the child has had no significant contact with the petitioner since she was eleven months old. Prior to then, the petitioner had only weekend contact with the child and did not reside in the same residence with the child and the respondent. Petitioner, upon learning of the mother's deceit, acted promptly in filing his petition. According to petitioner's reply affidavit, the mother has moved out-of-state with the child and has identified the man that she claims to be the actual father. Thus, it appears that the mother has not only agreed with the petitioner's decision to terminate his relationship with the child but she has placed a significant geographic obstacle in his path as well. Where a child is sufficiently old to actually form a bond, an issue of fact may genuinely exist as to whether such a bond has formed. For example, where the child in question was three years old, a hearing on the issue was required. Matter of Savel v. Shields, 58 AD3d 1083 (3d Dept 2009). Here, however, the child was only eleven months old when the petitioner discontinued his relationship with her and she is only fifteen months old now. The child's attorney has not presented any genuine issue of fact that the child has formed any bond with the petitioner sufficient to defeat the petitioner's motion for summary judgment. In the absence of such an allegation, and in view of the child's very young age, the absence of any opposition to this petition by the child's mother, the fact that neither party believes the petitioner to be the child's father, and the further fact that the mother and child now live in a different state, there is nothing in the record that would suggest that a denial of the petition will somehow advance the child's best interests. In fact, it strongly appears that a denial of the petition would be very much contrary to the child's best interests. This was precisely the result in a strikingly similar case involving a child who was 19 months old at the time the putative father petitioned to rescind his acknowledgment of paternity. Matter of Sandy M. v. Timothy J., 138 Misc 2d 338 (Fam Ct, Broome Co 1988). As in Sandy M., there does not appear to be any need to hold a hearing to resolve this issue.

NOW, THEREFORE, it is [*4]

ORDERED, that pursuant to Family Court Act § 516-a (b) (ii), the parties and the subject child shall submit to a genetic marker test or DNA test within sixty (60) days of entry of this order and the results thereof shall be promptly filed with the clerk of this court unless the petitioner shall sooner file with the clerk of this court the results of any prior genetic marker or DNA test in admissible form; and it is further

ORDERED, that upon such filing the court shall then determine whether to rescind the acknowledgment of paternity.

Dated: December 13, 2011.

ENTER:

___________________________________________

Judge of the Family Court Footnotes

Footnote 1: The petitioner's papers contain as an attachment an uncertified, undated and unsigned photocopy of a single sheet which purports to be from Genex Diagnostics, Inc. and shows a "probability of paternity" of 0%.