Matter of S.B. v T.J.

[*1] Matter of S.B. v T.J. 2010 NY Slip Op 52252(U) [30 Misc 3d 1203(A)] Decided on December 23, 2010 Integrated Domestic Violence Ct, Onondaga County Hanuszczak, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 6, 2011; it will not be published in the printed Official Reports.

Decided on December 23, 2010
Integrated Domestic Violence Ct, Onondaga County

In the Matter of S.B. v. T.J.



P-0056-10



David Rizzo, Esq., for petitioner; Gloria Chung, Esq., for respondent; Elizabeth Schenck, Esq., Attorney for the Child.

Michael Hanuszczak, J.

The instant paternity action was commenced on February 8, 2010, and the petitioner alleges that he is the father of E. J., who was born on February 25, 2009. An Attorney for the Child was assigned on March 8, 2010 and, at the initial appearance on April 1, 2010, the Court assigned counsel to the petitioner and to the respondent.

In his original, pro se petition, the petitioner alleged that he had sexual intercourse with the respondent from April, 2007 until May, 2007. On April 29, 2010, the Court granted the petitioner's oral application to amend the petition to reflect different sexual contact dates; however, no amended petition has been filed. At the April 29, 2010 Court appearance, the respondent denied that the petitioner was the father of the subject child and requested a DNA test. The Court reserved judgment on this request as the Attorney for the Child was not present.

On May 27, 2010 and at the request of the respondent's attorney, the Court adjourned the proceedings for medical reasons as the respondent was placed on bed rest as a result of her high-risk pregnancy.

At the October 12, 2010 Court appearance, the parties appeared by their attorneys. The Attorney for the Child requested a DNA test and the attorneys for the parties stated that their clients did not wish a DNA test. The Attorney for the Child argued that the DNA test would provide a high degree of certainty of the paternity of the subject child. She also stated that it would be in the best interests of her client to have a high degree of certainty of paternity since the respondent has been accused of various criminal actions as a result of domestic violence between the parties and since the respondent had stated at one time that the petitioner was not the father of the subject child.

This Court, which is an Integrated Domestic Violence (IDV) Court, takes judicial notice of the criminal actions that are before it involving the petitioner. The petitioner was charged with Harassment 2nd on two separate dates and the respondent was the victim in both. Resolution of those charges included a sentence of incarceration and an existing "stay away" Order of Protection in favor of the respondent subject to any parental visitation order. The Court notes [*2]that there are currently felony burglary charges pending in the IDV Court before a different judge which also resulted in another Order of Protection issued in favor of the respondent, who is the victim.

The Court also finds that the respondent, who is a victim of the petitioner's domestic violence, has altered her position with respect to the DNA test and, indeed, as to the subject child's paternity during the pendency of this action.

The instant request for a DNA test is complicated by the fact that the petitioner filed an Acknowledgment of Paternity with the Registrar of Onondaga County on July 7, 2010. The Acknowledgment was not filed with the paternity petition but was given to the Court at a subsequent Court appearance.

Section 516-a of the Family Court Act states that a valid Acknowledgment of Paternity "shall establish the paternity ... of the child." The Court finds that the Acknowledgment is valid as it does comport with the statutory requirements as described in Section 516-a and its reference statutes. However, the Court also finds that the Acknowledgment was neither executed nor filed until several months after the paternity petition was filed. In view of these findings and the inconsistent position of the respondent, the Court concludes that, in this case, the Acknowledgment of Paternity does not serve as conclusive proof of the paternity of the subject child.

Section 518(a) of the Family Court Act grants the court broad discretion to order DNA testing in the case of a contested paternity action, unless there is a finding that such testing is not in the best interests of the child on the basis of equitable estoppel, res judicata, or the marital presumption of legitimacy.

Decisional law holds that the doctrine of equitable estoppel may be properly applied by the court in a proceeding in which the paternity petition is filed by a putative father to establish paternity rather than to deny paternity. (Sharon GG v. Duane HH, 95 AD2d 466. ) The doctrine of equitable estoppel in a paternity action is codified in Section 532 (a) of the Family Court Act, which states that no DNA test shall be ordered if there is a written finding by the court that it is not in the best interests of the child. The use of equitable estoppel in a paternity action has been further defined by well-established case law.

The Court takes notice of its previous decision in Michelle L. v. Michael L., 1 Misc 3d 779 in which it held that an attorney for the child was authorized to move the court to preclude DNA testing. In his "Practice Commentaries" to Section 532 of the Family Court Act, Professor Merril Sobie cite this decision as authorization for the attorney for the child to request such a test.

(Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Judiciary Acts, Fam.Ct. Act, at 179.)

The Court of Appeals has ruled that the court should determine whether estoppel applies prior to ordering a DNA test. (Shondel J. v. Mark D., 7 NY3d 320.) The Court of Appeals has also held that it is the child in whose favor estoppel is applied and the analysis rests exclusively on the best interests of the child rather than on the equities between the two adult parties. (Id.) With respect to equitable estoppel, that doctrine shall be invoked only where it furthers the best interests of the child. Charles v. Charles, 296 AD2d 547.

In the instant proceeding, the Court finds that it is in the best interests of the subject child to order a DNA test, as requested by the Attorney for the Child. It is especially important that [*3]paternity be definitively established in a situation where the mother holds inconsistent views concerning the identity of the father and where the alleged father has perpetrated acts of domestic violence against the mother. In her Memorandum of Law, dated December 20, 2010, the Attorney for the Child summarizes the troubled history between the parties and argues that it is in the best interests of the child to have a high degree of certainty in the establishment of paternity. The Attorney for the Child also makes a credible argument that neither party will be prejudiced if the Court orders a DNA test since the petitioner can assume a parental role in the child's life with the permission of the mother even if the DNA test shows that he is not the biological father. The Court finds these arguments to be persuasive.

The Court further finds that it has sufficient information before it such that a separate best interests hearing is not necessary. (Vernon J. v. Sandra M., 36 AD3d 912.)

Accordingly, the Court grants the request of the Attorney for the Child and orders the parties and the child to undergo a DNA test as scheduled by the Court.