Troy VG v Tysha M. McG.

Troy VG v Tysha M. McG. 2010 NY Slip Op 09544 [79 AD3d 606] December 28, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Troy VG, Appellant,
v
Tysha M. McG., Respondent.

—[*1] Karen D. Steinberg, New York, for appellant.

Paul F. Sweeney, Bronx, for respondent.

Craig S. Marshall, Bronx, Attorney for the Child.

Order, Family Court, Bronx County (Andrea Masley, J.), entered on or about July 8, 2009, which denied the petition insofar as it sought to vacate the acknowledgment of paternity of the child, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a new hearing before a different judge.

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 (Matter of Eugene F.G. v Darla D., 261 AD2d 958, 959 [1999]). Moreover, Family Court should not have precluded cross-examination of respondent mother with respect to the child's living situation at the time of the hearing, particularly as the question of whether another person was acting as a father clearly is relevant to the ultimate issue of the best interests of the child (Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). Concur—Gonzalez, P.J., Andrias, Nardelli, McGuire and Abdus-Salaam, JJ.