Matter of Felix O. v Janette M.

[*1] Matter of Felix O. v Janette M. 2010 NY Slip Op 52332(U) [30 Misc 3d 1209(A)] Decided on December 22, 2010 Fam Ct, Kings County O'Shea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2010
Fam Ct, Kings County

In the Matter of a Paternity Proceeding Felix O., Petitioner,

against

Janette M. Herbert M., Respondent.



P-02420/04



Petitioner: Alan Fried, Esq.

Respondent Janette M.: Michael Carlin, Esq.

Respondent Herbert M.: Richard Colodny, Esq.

Attorney For the Child: Helen Singh, Esq. (CLC)

Ann E. O'Shea, J.

This matter is before the Court on the petition of Felix O.. ("Petitioner" or "Felix"), for an order declaring him to be the father of Precious Jewel M.. ("PJ"), who was born on July 16, 1999, and for an order setting his child-support obligation. Respondent Janette M. ("Janette" or "the mother"), the child's mother, opposes the petition. Herbert M., ("the Husband" or "Herbert"), who was married to Janette at the time of PJ's conception and birth, and continues to be married to her today, also opposes the paternity petition, as does the Attorney for the Child ("AFC" or "the child's attorney").

Felix filed his petition on January 7, 2004 — when PJ was four-and-a-half years old. For a variety of reasons — having nothing to do with Felix the case took an inordinately long time to conclude. Janette and Herbert together successfully evaded service for more than 19 months. A warrant was issued on Janette's second failure to appear after she was served. Janette was brought into court on the warrant on August 5, 2004, and ordered to appear on November 29, 2004. Felix and Janette appeared before the Support Magistrate on November 29, 2004. When the Magistrate learned that Janette was married when PJ was born, she added Herbert as a necessary party, issued a summons for him to appear, adjourned the matter to February 15, 2005, [*2]and referred the matter to a judge to address the issues of equitable estoppel and presumption of legitimacy.

Neither Janette nor Herbert appeared on February 15, 2005. Herbert had not yet been served, having reportedly refused to open the door when the police attempted to serve him. The court issued a new summons, authorized substitute service on Herbert by mail, and adjourned the matter to March 17, 2005. Herbert failed to appear again on March 17, 2005, when an attorney for the child was assigned. He similarly did not appear on the next adjourned date — June 2, 2005 when Janette was assigned counsel. Issue was not joined as to Herbert until August 10, 2005, a year-and-a-half after Felix filed his petition and a month after PJ turned 6.

The trial proceeded in fits and starts over almost four years, interrupted once when Felix's original attorney asked to be relieved, and a new attorney was appointed to represent him (see Felix O. v Janette M., Family Ct. Kings County, August 14, 2008, O'Shea, J., Index No. P-02420/04); again, when a mistrial was declared after Felix's new attorney reported that the transcripts of the initial proceedings were unintelligible; and yet again after Felix's initial testimony when the attorneys for Janette, Herbert and PJ moved to dismiss the petition. Those motions were denied, and the trial resumed, too often interrupted and delayed because one or another lawyer or either respondent was unavailable. Felix faithfully appeared on each court date except for one time when he confused the adjourned dates.

Felix and his sister, Marcellana O. ("Marcellana"), testified in favor of Felix's petition. Janette and Herbert testified in opposition to the petition and in support of their affirmative defenses of the presumption of legitimacy and the doctrine of equitable estoppel. Having considered the evidence and had the opportunity to assess the credibility of the witnesses, the Court's findings of fact and conclusions of law are set forth below.

Facts

Felix's Story

Felix and Janette met at the Henry Street Settlement in February or April 1998. She worked in the mail room, and he worked as a driver. Janette told Felix that, although she and Herbert were living in the same household, they slept in separate rooms and did not have sexual relations. Felix and Janette started dating in June 1998 and first became intimate on July 4, 1998.Felix testified that he did not know that Janette and Herbert were legally married until the case went to trial.

Three months after they began dating, Janette told Felix that she was pregnant and showed him an ultrasound picture of the child she was carrying. Felix understood Janette to be telling him that he was the baby's father. They agreed that she would have the baby and that "God would help them." Felix immediately began providing Janette with financial support of about $50 to $60 each month throughout her pregnancy. Felix and Janette continued to spend time together at least three times a month, sometimes more, until the affair ended in December 1998. They had sex many times during this period.

PJ was born on July 16, 1999. Felix spoke with Janette on the phone and they arranged for Felix to meet PJ at the Henry Street Settlement picnic at Bear Mountain a few weeks after PJ was born. Felix testified that he wept when Janette put PJ in his arms. Felix immediately began purchasing things that PJ needed including a crib, clothes, pampers, baby toiletries, and toys. He also continued to give Janette about $60 each month. [*3]

Soon after the Bear Mountain outing, Felix, Janette, and PJ met at Janette's mother's home. Janette's then17-year-old daughter Janine [FN1] was also there. They spoke about the things PJ needed, how much money Janette needed for PJ's care, and a visitation schedule for Felix. They decided that Felix would visit with PJ every Monday, which was his day off at that time.

For a year, Felix faithfully appeared on Mondays in front of Janette's home between 7:30 a.m. and 8:00 a.m. to pick up mother and child for his visit. He usually came bearing gifts for PJ and cash for Janette. He also purchased a camera for Janette, which she used to take pictures of PJ to give to Felix and to his family.Herbert was present on a number of occasions when Felix picked up Janette and PJ. At least once, Herbert helped put PJ's car seat in the car. A few other times, Felix observed Herbert watching from an upstairs window.

Each time he visited, Felix took PJ and Janette shopping for whatever PJ needed, including Pampers, toys, baby toiletries, clothes, and shoes. Other family members, including Janette's mother, Janine, and Marcellana, occasionally accompanied them on their shopping sprees. After shopping, Felix, Janette, and PJ usually went either to Felix's home or to a motel, where Felix could play with the child. Around 3:30 or 4:00 in the afternoon, Felix returned Janette and PJ to their home. At least three times a week, Janette called Felix at work and put PJ on the phone. Janette gave Felix a photograph showing PJ hugging the phone during one of these calls when Felix told her he loved her. That photograph was entered into evidence.

Felix attended PJ's first birthday party at Janette's home on July 16, 2000. There were balloons and a cake, and Cynthia and Larisa were there. Felix brought PJ gifts and stayed for about two hours. Herbert was not present. That same summer, Janette and Felix took PJ to Marcellana's home to meet her and Felix's father. Janette introduced PJ to Marcellana as her "niece" and referred to Felix as "Papi"throughout the visit . They stayed about four hours in Marcellana's home. Then they all went shopping for things PJ needed and later went to a restaurant. That was the first of at least four summer-time visits with members of Felix's family.

Some changes were made in the summer of 2000. Felix's day off was switched from Monday to Saturday, so he and Janette agreed that his visits would be on Saturday from about noon to 4:00 PM. In addition, there was an altercation between Felix and Herbert when Felix brought Janette a computer for her and her children. Herbert came out to help carry the computer into the building, and Janette went ahead of him carrying some of the smaller parts. After Janette left, Herbert punched Felix in the face. Declining to retaliate, Felix asked Herbert if that made him happy, then handed the remaining items to Janette when she returned, got in his car, and drove away. The incident prompted Felix and Janette to move the pick-up and return location from in front of Janette's and Herbert's home to a place around the corner.

Felix continued to visit regularly with PJ for the next three-and-a-half years, although the visits became sporadic at times based primarily upon Janette's whim, whether she had something else to do, or whether she was able to meet Felix without arousing Herbert's ire.In February 2003, Felix moved to Willimantic, Connecticut, a three-and-a-half hour-drive to Brooklyn. Still, [*4]he traveled to Brooklyn approximately every other weekend to see PJ. Felix spoke with Janette several times a week and repeatedly asked her to arrange for more time for him to visit with PJ. Given the circumstances, whether and when Felix was able to see PJ were completely within Janette's control.Felix remained as consistently and closely engaged in PJ's life as the circumstances and Janette permitted. Although he was precluded from spending holidays with PJ, he visited with her as often as Janette would allow and gave her birthday and holiday gifts. He brought PJ to visit with his sister and father several times, including in the summer of 2003, when they all celebrated PJ turning four. He took PJ shopping for her first pair of little girl "heels" when she was three and for her Halloween costume when she was four. Felix and Janette discussed what school PJ would attend. When Janette enrolled PJ in St. Peter's Lutheran school, Felix took them shopping and bought the uniforms PJ would need for the school. Once, when PJ was very sick, Janette called Felix at his job in the Bronx and asked him to get medicine for her. Felix immediately did as he was asked and drove from the Bronx to Brooklyn to deliver it. He continued to give Janette money for PJ and took them shopping for clothes, shoes, toys — whatever PJ needed on virtually every one of his visits. Janette and Herbert accepted all the things Felix purchased and all the money he provided.

Felix kept an album of pictures of PJ, which spanned PJ's life, from when she was just a few months old in November 1999 to April 2004 — just a few months shy of her fifth birthday — when Janette terminated his visits. Sixty-seven photographs from that album were admitted into evidence. [Petitioner's Exhibits (admitted into evidence 8/21/09): 2A & B; 3A & B; 4A & B; 5A-F; 6A-C; 7A-C; 8A; 9A-C; 10A-D; 11A & B; 12A-D; 13A-C; 14a-D; 15A-C; 16A-C; 17A; 18A & B; 19A-D; 20A-D; see also Petitioner's Exhibits (admitted into evidence 9/25/06): A1-4; B1-4] . There are pictures of Felix and PJ together; of Felix with PJ and Janette; of PJ with Felix and his father and sister Marcellana. There are pictures of Felix and PJ when she was an infant, when she was a toddler, and when she was a young child — in the park, shopping, visiting Felix's family. In virtually all of these pictures, Felix and PJ are smiling, with Felix looking for all the world like an adoring father with his beloved daughter. There are also pictures of PJ alone that Janette took — with the camera Felix gave her and sent to Felix. One photograph of Felix, Janette, and PJ together on a park bench was enclosed in a card that Janette sent to Felix in March 2001. In the card she wrote:

"To the man of my life and the father of my daughter.

Here is this card to let you know how much you mean to

me and to Precious. I wish it could be different, but its

better this way. I wish I could make a change but I can't

is all up to you. So this card is letting you know that we

are here for you. So when you thinking about us just look

at this card and see the pictures you have. So don't ever

forget us. You will always be in our hearts and soul. So

take care and smile more often. You got a beautiful smile.

I love you and be good to yourself. With lots of love J &

Precious. "

(Pet. Ex. 1). [*5]

From the beginning, Felix pressed to be officially recognized as PJ's father. He repeatedly asked Janette to have his name put on PJ's birth certificate, but Janette put him off each time. When he learned that Herbert's name was on PJ's birth certificate, Felix begged Janette to go with him to the Health Department to have it changed. Janette again deflected his entreaties. On March 20, 2002, Felix wrote a letter to Herbert, asking him to participate in a DNA test and assuring him that he did not want to take PJ away from him or his family, only to be acknowledged as her father and to be allowed into her life:

"Dear father of my daughter:

I am writing this letter to let you know the pain I

have.Please read carefully, because what you are about

to read is the pain of a father that ... needs to see his daughter.

I am not planning to take Precious Jewel away from you or her

family the only thing important is that I am her real father

and I have the right to see her too.

I don't want to go to court. There are better ways

to solve this problem. arrange an appointment to do a DNA

test and I will pay for all expenses.. . . I will go away if the

DNA proof that I am not the father. If we not get to a agreement

the only thing I know is the law to settle this matter.

Remember tomorrow is not promised to anyone, young

or old alike, and today may be the last chance you get to hold

your loved one tight. I lost my mother in May 13, 1999 and

Precious Jewel born in July 16, 1999 at the time of 6:59 a.m.

.... Please if you love your mother and daughters let me give

my love to the only ancestor [sic] from my family part still

leaving."

[R-Husband Exhibit C].[FN2] Herbert did not respond.

Felix pressed Janette to undergo a DNA test, but she continued to demur until sometime in 2004, after Felix filed his petition and before she terminated his visits, when she gave him a swab of PJ's cheek, which he used to obtain his own DNA test. A report of the test results was included as an exhibit in Felix's opposition to the motions to dismiss his petition and referenced in the AFC's affirmation in support of her motion to dismiss. Although not admissible for the truth of its conclusion that Felix is PJ's biological father, the report is admissible as evidence of Felix's state of mind in continuing his quest to be legally declared her father for more than five years after receiving the results.

Felix continued to see PJ even after he filed his petition, at least once with Janette in April 2004 and again in May 2004 — just two months shy of her fifth birthday, when, [*6]unbeknownst to Janette, Janine brought PJ to see him. Janette then terminated Felix's visits, and he has not seen PJ since.

Felix testified that he does not wish to disrupt PJ's life or to take her away from her family. He is seeking, through his petition, only the right to be part of her life, to provide for her, and to afford her educational and other opportunities that she might not otherwise have. He stated that he would do everything necessary and "give my life for my daughter."

Janette's and Herbert's Stories

Janette admitted that she had a romantic relationship with Felix, but insisted they were sexually intimate only once — in October 1998, within the time pertinent to PJ's conception. She agreed that Felix met PJ at the Bear Mountain picnic when she was a few weeks old but stated that he did not see her again until she was about eight months old — an assertion rendered demonstrably false by photographs she took of Felix and PJ together in November 1999.

Janette acknowledged that she permitted Felix to visit with PJ until she was nearly five years old and that she and Felix took PJ to visit Felix's sister and father at least twice. She testified that she took photos of PJ between visits from the time PJ was 6 months to 18 months old and gave Felix new sets of pictures at each visit, all of which Felix put in his album. She also took pictures of PJ to show to Felix's family.

Janette denied Felix's visits were as frequent or consistent as he had testified. Her estimates of how often Felix visited with PJ fluctuated dramatically during the course of her testimony: "maybe 20 times" in all between 1999 and 2004; or once in the first six months and once a month thereafter; or twice the first year and then once every two or three months for the next three and a half years ; or twice a month between the time PJ was six months old to when she was one-and-a-half; or not at all for some period between when PJ was one or one-and-a-half years old and when she was two or three years old. None of Janette's meager estimates square with the photographs in evidence (just a portion of the pictures in Felix's album), which document frequent, ongoing and regular visits from the time PJ was just a few months old until she was nearly five years old.

Janette testified that she arranged and permitted Felix to visit with PJ because he was a friend and she "felt pity for him" as he had no children of his own. In addition, although she denied that Felix gave her any financial support for PJ, she acknowledged that he did buy her things. In fact, she testified that she allowed Felix to visit with PJ because "he offered to buy clothes for her and I needed it and he was there" and because "he had a car and was willing to spend money." She acknowledged that Felix was the only person she allowed to have ongoing visits with PJ. Although she now denies that Felix is PJ's father, she admitted that she sent him a card in March 2002 in which she addressed him as "the father of my child." She explained that she did so "for friendship" — an explanation that is nonsensical on its face.

Janette told Herbert in or about January 2000 that she had had sexual relations with another man and that he might not be PJ's father. According to Janette, they only had that one conversation about it and did not discuss it again. She continued to bring PJ to Felix after that conversation with Herbert, but they rendezvoused away from her house so that Herbert would not see them.

[*7]Janette testified that she stopped Felix's visits in January 2004, because she did not want to be bothered seeing him anymore. Also, according to Janette, Felix " had changed," and he had a new 18-year-old girlfriend of whom she did not approve.

Consistent with Janette's testimony, Herbert testified that he first learned that Felix might be PJ's father in January 2000, when Janette confessed her infidelity. Although she did not identify the man with whom she had been unfaithful and he was not curious enough to ask, Herbert "assumed" it was Felix, although he did not explain why he made that assumption. Herbert stated that he and Janette did "calculations," — it is not clear what those calculations were — and, based upon those calculations, he was satisfied that he could be PJ's father. After doing the "calculations," he and Janette never spoke of the matter again.

Although Herbert claims that he never helped with a car seat, was never at home, never watched from a window when Felix arrived to pick up PJ and Janette on Mondays, and did not know that Felix was regularly visiting with P.J., he conceded that Janine told him in the early summer of 2000 that an "unidentified" man was regularly visiting with PJ. He knew that Janette and PJ were away from their home on Saturdays from about noon until 4:00 PM, but he thought Janette was visiting her mother. Herbert was not upset that another man was visiting with PJ, but was upset to learn that Janette lied to him about where she was going.

There was a great deal of testimony about all the ways Herbert acts like a father to PJ: he takes her to doctor and dentist appointments, helps her with her homework, goes to parent-teacher conferences and school events, reads to her, takes her and the other children places, celebrates birthdays and holidays with her. There was an equal amount of testimony about how Felix does not do any of those things. However, since Felix's contact with PJ was entirely controlled by Janette and he has been completely excluded from PJ's life for the last six years, there was no way that he would have been able to participate in those activities and events.

To the extent that there are discrepancies between Felix's testimony and that of Janette and Herbert, Felix is by far more credible. He was clear, definitive, consistent, and detailed in the story he told about his connection and relationship with PJ. His testimony was amply supported by his sister's testimony and the many photographs chronicling his life with PJ — and by many of respondents' admissions and acknowledgments. In contrast, Janette and Herbert contradicted themselves and each other, their memories were selective, and they were often evasive and vague in responding to questions. Janette's assertion that she regularly produced PJ for visits with Felix for nearly five years "for friendship" or because she felt sorry for him is simply not credible — particularly in the face of the card she sent to Felix in March 2002. Herbert's assertion that he was not the least bit curious who might be PJ's father is similarly incredible. His seeming obliviousness as to where all the things Felix was purchasing for PJ were coming from is also not believable.

Although Herbert's testimony was often confused and contradictory, it was consistent and unwavering in three crucial respects: He loves PJ without condition. He treats her the same as he treats his other children. And, no matter what a DNA test might reveal, he will always view and treat PJ as his daughter. Felix was equally clear that he wants only to love, provide for, and spend time with his daughter and does not wish or intend to disrupt PJ's family life or Herbert's relationship with PJ.

The Law[*8]

Preliminarily, it is important to note that this is a paternity petition brought pursuant to Family Court Act ("FCA") § 532 for an order declaring petitioner to be PJ's biological father. It is not a petition for custody or visitation and questions respecting either of those issues are not before the Court nor addressed in this decision (see Jean C. [Anonymous] v. Andrew B. [Anonymous], 86 AD2d 891, 892 [2d Dep't 1982]; see also Thomas S. v Robin Y. 209 AD2d 298, 301 [1st Dept. 1994], appeal dismissed without opinion, 86 NY2d 779 [1995]). The narrow question presented here is whether, under FCA §532(a), petitioner should be granted his request for a DNA test to determine if he is PJ's father.

Section 532(a) of the FCA provides, in relevant part, that when paternity is contested, the court "shall advise the parties of their right to one or more genetic marker or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child, and the alleged father to submit to one or more genetic marker or DNA tests. . . " This directive is not precatory; a court does not have discretion to disregard these provisions. However, as exceptions to the otherwise absolute right to court-ordered DNA tests, the statute provides that "[n]o such test shall be ordered. . . upon a written finding by the Court that it is not in the best interest of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman" (FCA §532(a)).

A party seeking to invoke an exception to a statutory right has the burden of establishing that the exception displaces the right. Objections to the assertion of the statutory right to DNA tests on one of the specified grounds are, by their nature, affirmative defenses, and the party opposing the DNA test has the burden of proving by clear and convincing evidence that one of the exceptions specified in the statute applies (see Prowda v Wilner, 217 AD2d 287, 290 [3d Dept. 1995] ["To avoid operation of the general rule favoring testing, the party seeking to do so . . . must adduce facts sufficient to trigger the exception"]; Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1134 [3d Dept 2006]); Thomas S. v. Robin Y., 209 AD2d 298, 300 [1st Dep't 1994]; Jean C. [Anonymous] v. Andrew B. [Anonymous], 86 AD2d 891, 891-892 [2d Dep't 1982]); Matter of C.M. v. S.H., 2007 NY Slip Op 27177 [Fam. Ct. Nassau Co. 2007]; Commissioner of Social Servs. v W.L., 9 Misc 3d 973, 975 [Fam Ct, Nassau County 2005]; M.S. v. K.T., 177 Misc 2d 772, 774 [Fam. Ct. Rockland Co. 1998]); Sandra S. v Larry W., 175 Misc 2d 122, 123 [Fam Ct, Bronx County 1997]; see also 57 NY Jur 2d, Estoppel, Ratification, and Waiver § 72). While the legislature could have made the right to a DNA test subject in all cases to a simple best-interest determination, it did not do so. Instead, it created a narrow exception to the otherwise unfettered right to DNA testing by requiring a best-interest inquiry only if one of the statutory conditions has been established (cf. Prowda , supra, 217 AD2d at 290] ["Significantly, the Legislature did not impose a blanket prohibition on testing whenever [an exception] comes into play, (though it could readily have done so); had that result been intended, there would have been no need for insertion of the best interest' language into the exception"]).

Implicit in the statute is the assumption that it is generally in the best interests of a child to know who her biological father is and not be "burdened with one who is not in fact [ her] natural father" (Jean C. (Anonymous) v. Andrew B. (Anonymous), 86 AD2d 891, 891 [2d Dep't 1982]). For that reason, not even an order of filiation declaring that someone else is the father of the child or a mother's objection can limit the right of a biological father to bring a paternity action declaring him to be the child's father ( Tyrone G. v. Fifi N., 189 AD2d 8, 14 [1st Dept [*9]1993]).Further underlying the statutory mandate for DNA testing is the recognition that such a test is often the key to the door through which an unwed father must pass before he may exercise his right to participate in his child's life (Thomas S, supra, 209 AD2d at 301; see also Alison D. v Virginia M., 77 NY2d 651, 657 [1991]; Janis C. v Christine T., 294 AD2d 496 [2d Dept 2002]; Multari v Sorrell, 287 AD2d 764 [3d Dept 2001]; Lynda A.H. v Diane T.O., 243 AD2d 24 [4th Dept. 1998], appeal denied, 92 NY2d 811 [1998]) — a right that is protected by the Constitution ( e.g., Stanley v Illinois, 405 US. 645, 651 [1972]; Corey L. Martin L. 45 NY2d 383, 386-87 [1978]; Bennett v Jeffries, 40 NY2d 543, 548 [1976]) .

Felix established his prima facie right to a court-ordered DNA test through his credible testimony that he engaged in sexual relations with Janette during the period pertinent to PJ's conception, which Janette acknowledged to be so (see, e.g., Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1134 [3d Dept 2006] ["a party seeking paternity testing under the Family Ct Act need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis for them"]; Prowda v Wilner, 217 AD2d 287, 289 [3d Dept.1995]). His uncontroverted testimony that Janette informed him of his impending fatherhood when she was three months pregnant, later confirmed his paternity in a letter to him, and actively arranged for his visitation and child support standing alone would justify entry of an order declaring him to be PJ's father absent countervailing factors (see e.g., Commissioner of Social Services v. S, 34 AD2d 1052 [3d Dep't 1970]. Clearly, Felix has established his prima facie right to a court-ordered DNA test (see, e.g., Prowda, supra, 217 AD2d at 289). The court is thus obligated under the statute to order such test unless respondents and/or the Attorney for the Child proved that one of the exceptions applied. Res judicata is not implicated in the present proceeding, but the presumption of legitimacy and equitable estoppel are.

The Presumption of Legitimacy

The presumption of legitimacy is a rule of evidence rather than a rule of substantive law (Commissioner of Social Servs. on behalf of Cunningham v. Grant, 188 AD2d 252 [1st Dep't 1992]). Although often described as one of the strongest known to the law, the presumption is rebuttable (Matter of Findlay, 253 NY1, 7 [1930]) Constance G v. Herbert Lewis L., 119 AD2d 209, 211 [2d Dept 1986]; Dawn B. v Kevin, D., 96 AD2d 922, 923 [2d Dept 1983]). It "was never intended to suppress the truth [or] perpetuate a falsehood" (Constance G, 119 AD2d at 211, quoting Sylvia B. v Ben, 70 Misc 2d 572, 576 [Fam Ct. Nassau Cty, 1972]), and it is "subject to the sway of reason" (In re Findlay, 253 NY 1, 7 [1930]).

The presumption arose at a time when there was no method for conclusively determining paternity. It was created to avoid the stigma of illegitimacy, to preserve the integrity of the family, to protect a child's inheritance rights, and to insure that she had an identifiable source of financial support (see, e.g., Frelich-Appleton, Presuming Women: Revisiting the Presumption in the Same-Sex Couples Era, 86 Boston U. L. Rev. 227 [2006]; Armstrong, Note, Putative Fathers and the Presumption of Legitimacy, 25 U Ark L Rev 369 [2003]). However, social mores have progressed to the point that there is little or no stigma attached to a child born out of wedlock, state inheritance laws protect the rights of "illegitimate" children, and scientific advances, particularly the development of DNA testing, can establish beyond any reasonable doubt who a child's father is, thus diminishing the necessity and usefulness of the presumption. Furthermore, the presumption can be overcome by competent evidence tending to show that the child may [*10]have been conceived outside the marriage (e.g., Walker v. Covington, 287 AD2d 572 [2d Dep't 2001]).

Since the enactment of FCA 532(a) requiring DNA testing, no longer may the presumption be utilized to perpetuate a falsehood if "the truth can be discovered, and equity does not demand otherwise"(Richard W. v. Roberta Y., 212 AD2d 89, 92 [3d Dep't 1995]; see also Nelson L. v. Charo A., 224 AD2d 531 [2d Dep't 1996]; cf. Anonymous v Anonymous, 1 AD2d 312, 318 [2d Dept 1956] ["presumptions are looked upon . . . as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts" [internal cite and quotation marks omitted]), ). In the present case, the truth can be discovered through a DNA test and the equities between the parties militate against the application of the presumption.

Felix's testimony that he had an ongoing sexual relationship with Janette and Janette's admission that she had at least one sexual encounter with Felix during the period pertinent to PJ's conception; her written acknowledgment of Felix as PJ's father in the card she sent to him in March 2000; her open recognition of Felix as PJ's father to Felix's father and sister — as well as to her own mother and eldest daughter; her confession to Herbert that he might not be PJ's father; Herbert's admission that he learned that Felix might be PJ's father in 2000 and his ongoing acquiescence in Felix's ongoing and open relationship with PJ; and respondents' ready acceptance of Felix's considerable gifts and child support for PJ over the course of four-and-a-half years constitute more than sufficient evidence to overcome the presumption of legitimacy.

Further, viewed through the lens of the equities, the conclusion is the same. Janette and Herbert long ago forfeited their right to lay claim to the presumption. Having voluntarily accepted money and goods from Felix for four-and-a-half years, acceded to his desire for visitation, and acquiesced in the establishment of his long-standing relationship with PJ, they may not now argue that he should be precluded by a fictional presumption from legally establishing the very status they voluntarily conferred — implicitly and explicitly.

Equitable Estoppel

The doctrine of equitable estoppel was first applied in paternity matters in Sharon G.G. v Duane H.H. (95 AD2d 466 [3d Dept 1983], aff'd 63 NY2d 859 [1984]), and is now codified in FCA §532(a). The elements of estoppel are: representation by the person sought to be estopped; reliance on the representation by the person asserting the estoppel; and harm to the person who has relied on the representation (see, e.g., First Union National Bank v Tecklenburg, 2 AD3d 575, 577 (2d Dept 2003);Michel DeL. v. Martha P., 173 AD2d 308, 309-310 [1st Dep't 1991]. The person asserting the defense of equitable estoppel must prove all three elements, and, in the absence of such proof, the inquiry ends and the application for the DNA test must be granted (see e.g., Prowda, supra, 217 AD2d at 289; Gutierrez, supra, 33 AD3d at1134; Commissioner of Social Services v W.L., 9 Misc 973, 976 [Fam. Ct., Nassau Cty. 2005]).

Equitable estoppel has generally been imposed in paternity cases in three contexts: when the putative father seeks to disavow his paternity after representing to the child that he is her father (see, e.g., Shondel J. V Mark D., 7 NY3d 320, 324, 326 [2006]; Brian B. v Dionne B., 267 AD2d 188 [2d Dept 1999]; Mancinelli v Mancinelli, 203 AD2d 634, 635 [3d Dept 1994]; Vito L v Filomena L., 172 AD2d 648, 651 [2d Dept 1991]); when a putative father belatedly seeks to establish his paternity after permitting — through his silence and inaction the child to form a bond with another man whom she has come to believe is her father (see, e.g., Jason E v Tania G, [*11]69 AD3d 518, 519 (1st Dept. 2010); Peter Z. v. Nilda C., 46 AD3d 696 [2d Dept 2007]; Robert P. v Vito C., 23 AD3d 659 [2d Dept 2005]; Purificati v. Paricos, 154 AD2d 360, 362 [2d Dept 1989]; Ettore I. v Angela D, 127 AD2d 6, 11-12 [2d Dept 1987]; Ellis v Griffen, 308 AD2d 449, 450 [2d Dept 2003]); and when a mother seeks to compel a man whom she has led to believe is the child's father to undergo a DNA test in order to exclude him from the child's life (see, e.g., Sharon GG v Duane HH, 63 NY2d 859, aff'g 95 AD2d 466 [3d Dept 1983]; Lorie F v Raymond F, 239 AD2d 659, 660 [3d Dept. 1987]; Matter of Boyles v Boyles, 95 AD2d 95, 97 [3d Dept. 1983]). None of these circumstances exists in this case.

For four-and-a-half years, Felix, relying on representations Janette made to him, declared himself to be PJ's father. Unlike the putative fathers in Shondel, supra (7 NY3d 320, 324), Mancinelli, supra (203 AD2d 634), Brian B., supra (267 AD2d 188),and Vito L, supra (172 AD2d 648), Felix seeks a DNA test not to deny his paternity, but to have it legally recognized; not to avoid his responsibility to his child, but to embrace it. Were Felix on the other side of the caption in this case and it was Janette seeking to require him to pay child support, his conduct would be more than sufficient to establish that he should be estopped from denying his paternity. That same conduct defeats any claim that he should be estopped from asserting his paternity.

Unlike the petitioners in Jason E, supra (69 AD3d 518), Peter Z., supra (46 AD3d 696), Robert P., supra (23 AD3d 659), Purificati, supra (154 AD2d 360), Ettore I., supra (127 AD2d 6), and Ellis, supra (308 AD2d 449), rather than sitting mute on the sidelines, Felix from the start proclaimed his paternity loudly and clearly throughout PJ's life. Virtually from the day she was born, and in reliance on Janette's representations to him, he has acted like PJ's father — to the extent he was permitted by Janette: providing regular financial support; making sure she had all the things she needed; demonstrating concern and love for her; having regular visits with her; introducing her as his child to his family. Unlike the "johnny-come-lately" fathers in the cited cases, Felix from the beginning has sought legal recognition as PJ's father, first by seeking Janette's assent, then Herbert's cooperation, and finally the court's intercession.

Respondents and the Attorney for the Child argued that, notwithstanding his actions, Felix waived his right to seek a DNA test by not filing his paternity petition with the court until PJ was four-and-a-half years old. Their contention is without merit.

As an initial matter, the only time limit imposed by the statute for the filing of a paternity petition is the child's 21st birthday (FCA §517). Additionally, if, as respondents and the AFC appear to contend, the only "representation" by a putative father that counts in a contested paternity case is the filing of a paternity petition, then equitable estoppel would evaporate as an exception to the statutory right to a DNA test, at least with respect to putative fathers who question or deny their paternity, since it is highly unlikely that they would file a petition asking for an order of filiation. In the face of all his words and actions affirming his status as PJ's father, as well as Janette's active fostering and Herbert's passive acquiescence in Felix's paternal relationship with PJ, the fact that he did not file a paternity petition sooner is of no import.

Respondents failed to produce any evidence that Felix made or that they relied on any representation by him that caused them to change their position or that lulled them into believing [*12]that he would not seek to be recognized as PJ's father. Nor did they produce any evidence of harm, the third element of equitable estoppel.[FN3]

Respondents and the child's attorney argued that they need not provide any proof of harm; that it can simply be assumed that PJ will suffer some detriment or harm if a DNA test establishes that Felix, not Herbert, is her biological father.[FN4] However, to my knowledge, there is no court that has directly addressed the issue, and there is no authority in the statute or in case law for the proposition that competent, admissible evidence of harm can be replaced by an assumption of harm. Such a principle would stand the law of estoppel and the rules of evidence on their heads and carve out paternity as an inexplicable exception to the requirement that each element of equitable estoppel be proven (see, e.g., Coatsworth v Lehigh V. R. Co., 115 AD 7, 9 [3d Dept 1906] [there can be no estoppel by presumption; equitable estoppel is an affirmative defense, and the proponent must prove facts establishing the estoppel]; see also 57 NY Jur Estoppel, Ratification, and Waiver § 72 ["each element must be established by clear, convincing, and entirely satisfactory evidence, leaving nothing to inference or speculation"].[FN5]

Requiring that each element of estoppel be established by competent evidence in paternity proceedings is important not only because it creates an exception to a clear statutory right of constitutional dimension but also because the doctrine is a legal oddity that forecloses inquiry and potentially perpetrates or continues a falsehood on an issue of great moment to both putative fathers and children. It is employed ostensibly to avoid possible emotional trauma to a child from learning that her father is not whom she has been led to believe; to maintain the bonds of an intact family (see, e.g., Kristen D. v Stephen D., 280 AD2d 717, 719 [3d Dept 2001]; Ettore I, [*13]supra, 127 AD2d at 14-15); and to insure that the child has an identifiable source of financial support (see, e.g., Michel DeL v Martha P., 173 AD2d 308, 309 [1st Dept. 1991]). However, since DNA testing is now widely available to anyone who wants to know, the truth may be revealed regardless of whether a court does or does not order a DNA test. Denial of a DNA test to a putative father may not protect a child from learning the truth about her paternity — from the putative father or someone else. In the absence of evidence, it cannot be assumed that an established relationship would be broken by the results of a DNA test or that such relationship will be protected in the face of unresolved doubts about paternity. It may be unwise to assume that a relationship fractured by such doubts cannot be repaired if a DNA test confirms that the putative father is the child's biological father or that denial of a DNA test can hold together a family torn by doubts as to paternity. Perhaps most poignantly, it cannot make a man who doubts his paternity act like a loving father. All it really can do is provide a basis to make him pay.

In any event, there is no basis to assume or believe in this case that PJ will experience any long- or even short-term detriment or harm.

There is no evidence that Herbert would turn his back on PJ if a DNA test demonstrates that Felix is her father. In fact, Herbert insisted that no matter what the test might show, he would continue to view and love PJ as his daughter. Similarly, there is no evidence that PJ's family would be ripped apart if it is established that Felix is her father. Felix was very clear in his testimony, as he was in his letter to Herbert, that he does not wish or intend to disrupt or interfere with PJ's existing family, that he wants only to be permitted to resume his participation in her life and to continue to love and support her in every way that he can as he did for nearly five years before Janette severed his connection to PJ.

If estoppel applies at all in this case, it applies to Janette and Herbert. From the date she first told Felix she was pregnant with PJ until the date she terminated his visits, Janette actively and affirmatively led Felix to believe that he was PJ's father. She initiated and fostered the relationship between Felix and PJ for over four-and-a-half years, arranged for his visits, and held Felix out as PJ's father to his family. For four-and-a-half years, Herbert silently acquiesced in Felix's ongoing and extensive involvement in PJ's life and in the development of the relationship between them. They both accepted Felix's considerable financial and material support for PJ year after year. In these circumstances, it is Janette and Herbert who should be estopped from denying Felix his statutory right to a DNA test (see, e.g., Thomas S. v. Robin Y., supra, 209 AD2d at 306-307 [1st Dep't 1994]["having initiated and encouraged, over a substantial period of time, the relationship between petitioner and his daughter, respondent is estopped to deny [petitioner's] right to legal recognition of that relationship"); see also Michel Del v. Martha P, 173 AD2d 308, 309 [1st Dept 1991] ["respondents acted in bad faith, permitting and encouraging petitioner's parental behavior and attachment to the children to continue for their monetary gain"]).

Petitioner successfully rebutted the presumption of legitimacy. Respondents failed to establish any of the elements of equitable estoppel: They failed to prove that Felix made any representation other than his consistent and unwavering assertion that he is and wishes to be legally recognized as PJ's father. They failed to demonstrate that they reasonably relied on any word or action by Felix except his expressed belief that he is PJ's father, which they exploited for [*14]their own and PJ's financial and material benefit. And they failed to establish that PJ would be harmed by a court-ordered DNA test.

Best Interests

As respondents have failed to establish any exception to the statutory right to a DNA test, there is no basis for the Court to inquire whether ordering the test would or would not be in the child's best interests.Nonetheless, the evidence in this case establishes that PJ's interests will best be served if the Court orders a DNA test. During the more than four-and-a-half years that Felix was allowed to participate in PJ's life, she benefitted from his ongoing, consistent, and unconditional love and support. To the extent respondents considered PJ's interests at all during that time, they plainly believed and acted as though it was in her best interests to have Felix in her life. Janette severed PJ's relationship with Felix with nary a thought about whether that was in PJ's best interests, merely because she (Janette) was "tired" of him. There is no way to gauge today whether and to what degree PJ was injured by the sudden disappearance of this man who had showered her with love for all of her life until then, and that issue is not before the Court.

Felix was ripped from the child's life, and she has been deprived of his love and support now for nearly six years. Not because of any failure on his part, but because respondents spent those years excluding him from her life and because the law denies him standing to seek visitation until he has been legally declared the father (see Alison D., supra, 77 NY2d at 657; Janis C., supra, 294 AD2d at 496; Multari, supra, 287 AD2d at 764; Lynda A.H., supra, 243 AD2d at 26; see also DRL §72, which confers non-parent standing to seek visitation only on grandparents and siblings). The six-year delay, between the date Felix filed his paternity petition and the date of this decision, was not caused by Felix. Rather it was caused by respondents' initial refusal to resolve the issue of PJ's paternity when she was much younger without resorting to the court, as Felix had requested; by their repeated attempts to avoid service and prolong the litigation; and by an over-burdened court system that is not conducive to expeditious resolution of contested proceedings. Neither Felix nor PJ should be prejudiced by delays that were not their doing and beyond their ability to control (Dickson v Lascaris, 53 NY2d 204, 209-10 [1981 (where a period of separation is attributable to the parent's efforts to regain custody lawfully, that separation is entitled to little, if any, consideration); In re K, 47 NY2d 374, 382 (1979).

Putting aside the benefit to a child of knowing the truth about her paternity, the evidence presented in this proceeding establishes that, should a DNA test demonstrate that Felix is her biological father, PJ will neither lose Herbert's love nor suffer any disruption of her family. The evidence does establish that should that be the result of the DNA test, PJ may regain Felix in her life along with his love and emotional and financial support. All of these circumstances demonstrate that it is in PJ's best interests that a DNA test be ordered so that it can conclusively be established whether Felix is her biological father.

Conclusion

As no exception to petitioner's statutory right to a court-ordered DNA test has been established and the totality of the circumstances demonstrates that it is in the child's best interest that a DNA test establish whether petitioner is her father, the petition is granted. The parties and the child are ordered to submit to a DNA test forthwith. In view of the financial circumstances of the parties, the cost of the test shall be paid pursuant to Section 722-c of the County Law.

[*15]

Dated:December 22, 2010E N T E R

_____________________________

ANN ELIZABETH O'SHEA, AJSC

Footnotes

Footnote 1:Janine is not Herbert's daughter. At the time PJ was born, Janette and Herbert had two other daughters, Cynthia, who was seven years old in 2000, and Larisa, who was four at the time. In the interim, Janette gave birth to three other children.

Footnote 2:Herbert submitted this letter into evidence as proof that Felix knew that he (Herbert) was PJ's father because Felix referred to Herbert as "the father of my daughter." The context in which the letter was written and the substance of the letter itself negates any such interpretation.

Footnote 3:Respondents and the AFC sought to present a forensic psychologist who specializes in custody matters as an expert witness on the question of harm. However, the witness had no knowledge or experience or expertise regarding the possible impact on a child of learning that her biological parents are not the people she has been led to believe are her parents. Hence, the witness was not qualified as an expert on the matter and did not testify.

Footnote 4:PJ's attorney could not ascertain her client's position without disclosing the information she sought to keep from PJ, so she substituted her own judgment as to the issue of potential harm. While the attorney's position was a difficult one, it is not clear why she opposed the DNA test without any evidence that PJ would be harmed and without considering the potential benefits PJ might enjoy if it is established that Felix is her father — including having another person in her life who will love and support her.

Footnote 5:Cf. Smythe v Worley, 72 AD3d 977 [2d Dept 2010], which appears to equate evidence of a parent-child relationship with harm. However, to the extent the Court may have been concerned that a DNA test might sever the relationship between the putative father and the subject child, that concern does not exist here. Felix, unlike Mr. Worley, seeks to embrace, not deny, his relationship with the child. Moreover, PJ's relationship with Felix was severed not by the possible results of a DNA test but by the actions of Janette and Herbert. At this point, it is too late to ascertain what if any harm PJ may have suffered from the abrupt elimination of Felix from her life, a matter that was apparently of no concern to Janette and Herbert.