Matter of P.D. v S.K.

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[*1] Matter of P.D. v S.K. 2007 NY Slip Op 52243(U) [17 Misc 3d 1133(A)] Decided on November 16, 2007 Family Court, Nassau County Greenberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 14, 2007; it will not be published in the printed Official Reports.

Decided on November 16, 2007
Family Court, Nassau County

In the Matter of P.D., Petitioner,


S.K., Respondent.


Nassau County Office of the County Attorney

Jeffrey D. Herbst, Esq.

Family Court Bureau

Attorney for Petitioner

1200 Old Country Road

Westbury, NY 11590

Potruch & Daab, L.L.C.

Michael Daab, Esq.

Deborah A. Kelly, Esq.

Attorney for Respondent

666 Old Country Road, Suite 700

Garden City, NY 11530

Mona N. Glanzer, Esq.

Law Guardian

17 Weston Place

Lawrence, NY 11559

Ellen R. Greenberg, J.

The case before the Court was referred by the Support Magistrate on the issue of equitable estoppel in this paternity proceeding. The petitioner began a child support proceeding pursuant to the Uniform Interstate Family Support Act (UIFSA) as she resides in Oregon, and the respondent resides here in Nassau County.

The respondent requested genetic testing for the purpose of denying paternity. A law guardian was assigned to represent the child. The law guardian has moved to have respondent equitably estopped from denying paternity.

The law guardian, in support of her motion, submits an affidavit from the child who is now eighteen years of age, born on July 26, 1989, which states that he knows the respondent to be his father and has never known anyone other than the respondent to be his father. He further states that the respondent has sent him cards and gifts for birthdays and other occasions which he signed "Dad" or "Daddy".

Attached to the law guardian's motion are exhibits including the child's birth certificate with the respondent's name listed as the father, as well as copies of cards and correspondence where the respondent signed "Dad" or "Daddy".

The petitioner is represented by the Nassau County Attorney's office. The petitioner, the child's biological mother, does not object to genetic testing. In fact, the mother submits a letter requesting that the test be ordered by the Court.

The respondent is the only one of the parties who submits any historical background.

The respondent's response to the law guardian's motion for equitable estoppel explains that in 1988, while he was working as a physician in a hospital, he agreed to be a sperm donor at the request of the petitioner, who at the time was a resident at the same hospital. He submits that while he was married at the time, he agreed, based upon numerous promises that he would have no rights or benefits in raising the child, nor any financial responsibilities.

The respondent provided his sperm to the petitioner who was inseminated by her same sex partner, also a physician.

The respondent submits that he allowed his name to be put on the child's birth certificate, as the child's father, stating, "I felt it was in K.K.'s best interests that he would have an identity when he grew older and consented to have the birth certificate changed to reflect that I was the father'".

The respondent further states that from the child's birth until 1993 he did have contact with the child, until the child, his mother, and her partner moved to the state of Oregon. The respondent admits to making financial contributions to the petitioner, as well as sending gifts, cards and letters to the child for birthdays, Christmas and other occasions.

The respondent also reports that, over the last fifteen years, he spoke to the child seven or eight times over the telephone, and did see him about three years ago for a few hours when they visited Pennsylvania.

The petitioner's papers do not address the circumstances or terms of the child's conception. While they set forth the case law which supports the doctrine of equitable estoppel, the petitioner, in a letter attached to her papers "ardently" requests that the test be ordered.

Family Court Act § 418(a) and § 532(a) give the Court the authority to order genetic testing in paternity matters. It clearly states, however, that "no such test shall be ordered, [*2]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."

Therefore, before this Court can order genetic testing, a determination under the doctrine of equitable estoppel must first be made as to whether it would be in the best interests of the child to permit the respondent to deny paternity. The doctrine of equitable estoppel "is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought." Nassau Trust Co. v. Montrose Concrete Products Corp. 56 NY2d 175, 436 N.E.2d 1265 (1982).

In paternity and child support cases, the doctrine of equitable estoppel has often been applied. "The paramount concern in applying equitable estoppel in these cases has been and continues to be, the best interests of the child." Jean Maby H. v. Joseph H., 246 AD2d 282 (2d Dep't 1998); Louise P. v. Thomas R., 223 AD2d 592 (2d Dep't 1996); Ettore v. Angela, 127 AD2d 6 (2d Dep't 1987); Greg S. v. Keri C., 38 AD3d 905 (2d Dep't 2007).

The Court in Gutierrez v. Gutierrez-Delgado stated that the factors to be considered in determining whether the best interests of a child would be served by paternity testing include the child's interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect the testing may have on the child and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered. 33 AD3d 1133 (3d Dep't 2006).

In order to succeed on the issue of estoppel, the moving party has the burden of proving, by clear and convincing evidence, that he is entitled to invoke this doctrine. Bergner v. Kick, 85 AD2d 911 (4th Dep't. 1981), aff'd, 56 NY2d 795, 437 N.E.2d 1158 (1982); Sandra S. v. Larry W., 175 Misc 2d 122 (Family Court of New York, Bronx County, 1997). "Once there is a showing of operative facts to support estoppel, the burden shifts to the other party to show why there should not be an estoppel in the best interests of the child." Sharon G.G. v. Duance H.H., 63 NY2d 859 (3d Dep't 1983).

In the instant proceeding, the law guardian has met her burden by submitting affidavits that the child has never known anyone other than the respondent as his father, and that the respondent has sent him money, gifts and cards which are signed either "Dad" or "Daddy". Therefore, the burden shifts to the respondent to show why estoppel should not be granted.

Here, the respondent concedes that he has sent cards, money and gifts over the last fifteen years and that he allowed his name to be listed on the child's birth certificate as the father because he "felt it was in the child's best interests that he would have an identity." Further, the respondent has held himself out as the child's father. Allowing the respondent to deny paternity after eighteen years where the child has believed the respondent to be his father would have a traumatic effect upon the child and would be contrary to his best interests. [*3]

In fact, the Court in Shondel J. v. Mark D 7 NY3d 320, 853 N.E.2d 618 (2006) relying on the best interests of the child standard, declared the non biological father to be the father where he held himself out as such even though he did so under the mistaken belief that he was the biological father.

Therefore, based on the foregoing, the respondent is estopped from denying paternity and his application for genetic testing is denied.

This matter is referred back to the Support Magistrate for a determination of child support based on the mother's earning capacity, the reported income of her live-in partner as appropriate, and the current income of the respondent.



E N T E R:


Honorable Ellen R. Greenberg

Judge of the Family Court

Dated:November 16, 2007

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Order mailed on:_____________________________

Order received in court on:_____________________

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