AMS, III v EDG

[*1] AMS, III v EDG 2012 NY Slip Op 51096(U) Decided on May 4, 2012 Family Court, Suffolk County Loguercio, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 2012
Family Court, Suffolk County

AMS, III, Petitioner,

against

EDG and PS, Respondents.



XXXXX



Thomas Campagna, Esq., Attorney for Petitioner

Nancy Enoksen, Esq., Attorney for Respondent, EDG

Natasha Meyers, Esq., Attorney for Respondent, PS

Heather Fig, Esq., Attorney for the Subject Child

Caren Loguercio, J.

INTRODUCTION

In a story that unfolds like the James Thurber classic, The Secret Life of Walter Mitty, Petitioner commenced this paternity case alleging he is the father of a child, AMS, IV a/k/a MAG. However, unlike Walter Mitty, a harmless man who escapes reality by creating elaborate fantasies in his mind, here we have a mother who allegedly created two realities, purportedly telling two men they were the father of a child and calling the child two different names depending on which man was present. Unfortunately, she did this at the expense of the now five and a half year old child. As the parties do not even agree as to the child's name as explained more fully below, he will be referred to herein as "the child" or "the subject child". This proceeding involves application of the doctrines of the presumption of legitimacy and equitable estoppel and underscores how sometimes a parent does not think about the consequences and impact of his/her actions on a small child.

BACKGROUND

Respondent, EDG, (hereinafter referred to as "EG"), is the mother of a male child, born October 10, 2006. According to the testimony, the child was born 6 weeks premature and spent approximately two weeks in the hospital before being released. Petitioner, AMS, III (hereinafter referred to as "AMS"), claims to be the father of the child, whom he refers to as "AMS, IV", was present in the delivery room when the child was born and alleges that, with the exception of a period between January 2007 and either April or May of 2007, EG and the child lived with him until January of 2010. Co-respondent, PS (hereinafter referred to as "PS"), is EG's husband, and it is undisputed they were married at the time of conception and birth of the child. According to [*2]the testimony, EG and PS are still married and living together as a family with the subject child they call "M". AMS contends that although EG moved out with the child in January of 2010, he maintained regular contact with the child. In September of 2011, when EG cut off AMS's access to the child, he commenced the instant proceeding to establish paternity.[FN1]

The trial in this matter took place over a period of 20 days. Fourteen witnesses testified and the Court conducted an in camera examination of the subject child, who is now five and a half years old.

PETITIONER, AMS, III'S CASE

AMS called EG as his first witness and then she also testified on direct examination by her own attorney. She was also cross-examined by AMS's attorney, PS's attorney and the attorney for the child. Although equivocating at times, when questioned by AMS's attorney, EG admitted to unprotected sexual intercourse with AMS during the relevant conception period. She claims she also had unprotected sexual intercourse with Co-Respondent, PS, during that period and further that she had unprotected sexual intercourse with other men during the relevant period. EG was unable to testify with certainty as to how many other men she had unprotected sexual intercourse with and stated she did not keep any sort of diary or record of the number or names of these men she had sexual relations with during this time. EG claims that PS is the father of the child and that she knows this to be a fact, despite acknowledging that she did not perform any scientific test establishing paternity. EG claims she never told AMS he was the child's father and in fact, told him that PS was the father. EG denies that she lived with AMS at his residence, in a gated community in East Islip, but admits merely that she would "stop by" on various holidays, as she did with other family and friends. She denied she had a transmitter to the gate at the entrance to the community where AMS resides.

Although EG claims she told AMS he was not the father, and denied she told the child to call AMS "daddy", she admitted she called AMS "daddy" in the child's presence. AMS submitted numerous photographs in evidence during his examination of EG. Although it was clear these photographs depicted AMS and the child celebrating birthdays and holidays, often with members of AMS's family, including his daughter, G, and his mother, EG would hardly acknowledge recognizing the occasions of the photographs or items contained in the photographs. Notably, one particular photograph depicted a birthday cake with the name "A" inscribed (Petitioner's 7). EG claimed she could not read the name on the cake, while it was evident from the Court's examination of the photograph that the name "A" was displayed.[FN2] Much of EG's testimony was likewise incredible and often contradictory. Moreover, as set forth in detail below, during the course of her examination over a period of approximately four days, she admitted to registering the child in a school district in which she claimed she did not reside, using health insurance provided by AMS for the child despite her testimony AMS was not the [*3]father and changing the child's name on his birth certificate. She testified she did not notify AMS of the name change application because he was not the father of the child and thus was not required to do so. All of these actions negatively impact her credibility with the Court.

With regard to the birth certificate, the submissions reflect that EG originally named the child AMS, IV on his birth certificate, although no father was named. In January of 2007, EG filed a Petition for a Name Change in Supreme Court to change the child's name (Attorney for the Child 6). On the Petition, which was submitted into evidence, EG listed PS as the father, and changed the child's name to MAG. The Infant Name Change Order (Respondent G's IIII) indicates that the consent of the father, PS, was "sworn to" on January 31, 2007, as part of the application. Curiously, no explanation was made by EG about how she got PS to consent to the name change without explaining why the child's name was originally listed as "AMS, IV".[FN3] Notably, EG testified that she did not tell PS about her relationship with AMS until September 2011, shortly prior to commencement of these proceedings. EG did not give the child PS's name or indicate on the amended birth certificate PS, or anyone else, was the father. EG claimed that she did not give the child PS's surname because it wasn't important to him, PS had an agreement she could use her maiden name and there were enough boys in PS's family that it didn't matter.[FN4] Although both the original and amended birth certificate list AMS's address as that of the subject child, EG claimed she just never thought to change the address and was only concerned about the child's name. As EG testified that she and the child were living with PS at the time of the name change, her failure to change the child's address on the birth certificate to the Cutchogue address and her failure to change the child's last name to "S" is inexplicable and significantly detracts from her credibility. Also, EG's driver license and the amended birth certificate has her name hyphenated to include PS's surname.

In addition to EG, AMS testified on his own behalf and called 8 witnesses: three neighbors/friends, a long time friend, two business associates/friends, an employee and his mother. At the outset, the Court notes that it found all these witnesses to be forthright and credible. Essentially, the testimony of all these witnesses was that from 2006 to 2010, EG lived with AMS and the child, they lived together as a family and they heard the child refer to AMS as "daddy" on numerous occasions and, that EG referred to AMS as "daddy" to the child. With the exception of AM, none of the other witnesses knew PS. TR, a long time friend of AMS's testified that EG told her she was divorced, and friend and neighbor DH testified that AMS told him he had seen divorce papers. Several witnesses testified they heard EG say that she wanted "a ring", she wanted to marry AMS and she moved out of AMS's residence in 2010 because they were not engaged. AM, who was a business associate of both AMS and PS, testified that during a lunch with PS, he (the witness) realized PS was married to EG, but thought that EG was in a relationship with AMS. He did not say anything to PS. All of these witnesses testified that they believed AMS was the father of the child and had no reason to believe anyone else was the father based upon the representations and actions of EG as well as their observations of AMS with the child. AMS called the child "A" in their presence and EG referred to AMS as "daddy" to the child. AMS's witnesses all testified as to being at AMS's residence, while EG and the child [*4]were present, and the child had a bedroom in the house, next to AMS's daughter G's bedroom. AMS and EG shared a bedroom across from the children. The witnesses testified they were there at all different times of the day and more than once AM was even there at 6 a.m. to go on a fishing trip, and EG was present. The other witnesses testified they saw the child being put to bed in the crib, in his room at night and the neighbors testified they saw EG's car at AMS's house, all times of the day and night from 2006 - 2010.

DH, a neighbor and friend of AMS's for 16 years, testified he went out numerous times on AMS's boat. Sometimes, EG and the child would be present and sometimes just the child. He also testified that AMS would tell him he was picking the child up from daycare and would see him coming back with the child in the car seat in the car. DH testified he saw EG entering and leaving the gated community at different times of the day, and that she had a "clicker" which remotely opened the gate at the entrance and is reserved for residents of the community.

Counsel for EG and PS attempted to discredit these witnesses since they were unable to specifically identify dates and times they saw EG or her vehicle at AMS's house and to discredit DH because of a discrepancy as to when he observed a crib in the child's bedroom. However, the Court finds that these witnesses were honest and forthright, and they could not pinpoint dates and times because EG lived there. It was part of their everyday lives to see her, and/or her vehicle, at AMS's residence and therefore, specific dates were not noted.

AMS's mother, AS, testified as to the various birthdays and holidays she spent with the child. She went to the hospital when the baby was born and was present at AMS's home when he brought EG and the child home from the hospital after birth. AS was the only relative of either AMS, EG or PS who testified to visiting the hospital when the child was born. EG and PS attempted to raise an issue because AS only observed the baby through the window of the neo-natal intensive care unit. AS testified AMS told her she could not go inside. Although EG and PS questioned whether she couldn't go inside because she wasn't "family", she denied this, and no contradictory evidence was proffered. AMS's daughter was also present at his home when the baby came home from the hospital and a photograph was submitted into evidence purportedly depicting this day (Petitioner's 5 and 15K). AS considers the child to be her grandchild and testified she babysat for the child and never had any reason to believe AMS was not the father of the child. AS testified, credibly, that between 2007 and 2010, she spent almost every holiday at AMS's house with EG and the child and that EG and the child never left the house. Also, AS testified that she had a key to AMS's residence and often she would go to the house and EG would be working in "her office" in the house and would indicate that she should be quiet because she was on a conference call for work. Finally, AS testified that in 2011, EG sent her a text message with a photograph of the child. The text message said "Grandma Happy Mother's Day". The last time she saw the child was just before his 5th birthday in October of 2011.

Moreover, DH testified that he spent Christmas Eve or Christmas Day from 2006 to 2010 with AMS and that on all those occasions, EG and the child were present. Although he could not specify which years it was Christmas Eve or Christmas Day, such is irrelevant and has no impact on his credibility. TR, a friend of AMS's for twenty years, testified that EG, AMS and the child [*5]spent Christmas Eve 2009 at her residence.

EG was questioned extensively regarding the events surrounding the birth of the child in October of 2006. She indicated that she was at AMS's house when her water broke and he drove her to the hospital. An emergency caesarian section was performed and AMS was in the delivery room. Prior to this trip to the hospital, EG testified that after an argument with AMS she didn't feel well and drove herself to the hospital. AMS met her at the hospital and convinced her to go back to the house with him and they returned together to the hospital when her water broke. Photographs in the hospital, including the delivery room, were admitted into evidence (Petitioner's 15e, 15f, 15g, 15h, 15j, 3d, 3f, 3g, 3k, 3m and 3n). Petitioner's Exhibit "15e" depicts AMS holding the child in the delivery room. EG testified that her husband, PS, was out-of-state on a golf trip and was not present. When he returned to New York, PS allegedly visited EG and the child in the hospital.[FN5] AMS also visited EG and the child in the hospital, but was not present when PS was at the hospital.

EG testified that when she was released from the hospital, AMS picked her up and she went to his house because her car was parked there. She testified that when the child was released from the hospital, she did not tell PS, but instead, AMS picked her up and she went with the child to his house, again noting that her car was parked there. Given EG's testimony that PS visited her and the baby at the hospital "every day", their respective testimony that she did not tell him of the baby's release from the hospital, is not credible. Clearly, if PS was actually visiting the child every day in the hospital, he and EG could have planned for the baby's upcoming release together. The fact that they did not do so, speaks volumes.

EG also claims that when the baby was released from the hospital she went to her friend LM's house. She claims that PS would visit her and the baby and on some weekends he would even take the baby alone back to his house in Cutchogue so she could "get some sleep". On some weekends she would go to Cutchogue with PS and the baby. According to EG, PS is and has been intimately and actively involved in all aspects of the child's life and has done absolutely everything for the child, and he is the father, as contrasted with AMS, whom she claims expressed very little interest in the child.

Upon examination by her own counsel (stipulated by all counsel to be direct examination), EG submitted 133 photographs of the child, including vacations, holidays and school functions. EG testified that she would spend holidays with PS, then take the child to see AMS, where they would just "stop by" (despite the fact that AMS's home was at least an hour from Cutchogue), unbeknownst to PS. She claims she told PS she was going to her father's or a friend's house and would go see AMS. EG asserts that she continued to bring the child to see AMS because he repeatedly threatened to tell PS about their relationship. She also asserts that this is the reason that she originally named the child "AMS, IV". EG claims she did not tell PS about AMS and her relationship with him until September of 2011, shortly before the commencement of this proceeding.

It is undisputed that from the child's birth, AMS provided health insurance for the child and that EG utilized the health insurance until some time in 2011. Under the health insurance, the child was listed as "AMS, IV". EG testified that even after she legally changed the child's name, she did not either notify the pediatrician or remove the child from AMS's health insurance. When questioned about this, she admitted that she knew that there could be a problem if the name on the insurance did not match the name provided to the doctor or hospital. Upon further examination regarding her knowledge of insurance fraud since she is in the insurance industry, she asserted her 5th Amendment right against self-incrimination and refused to answer any further questions regarding the issue. Similarly, EG testified that when it was time for the child to start kindergarten, she enrolled him in the Sayville School District, notwithstanding that she did not live there and claims she was living in Cutchogue at the time with PS and the child. She states she removed the child from the Sayville School District in October because she believed the school district was getting suspicious and that she was being followed.

EG testified that the child attended the following daycare/pre-schools. In 2007, SM babysat for the child at her home in Jamesport. SM, the wife of a business partner of PS's, also testified on behalf of EG. In 2008, he attended ABC in Oakdale and in 2009, he attended XYZ in East Islip. In 2010, EG switched the child to 123 in Rocky Point where he stayed until he started kindergarten in Sayville in September 2011. Although EG claims she lived in Cutchogue with PS and the child, she testified she enrolled him in these preschools, which were located an hour from Cutchogue, but were within 10 to 15 minutes of AMS's residence in East Islip, because it was more convenient for her work schedule. Moreover, although EG claims that AMS was never really interested in the child but really only her, he did attend the child's first day of kindergarten. EG asserts she never told AMS about it or invited him but that he just "showed up". EG produced several arts and crafts projects made by the child and given to PS, but also admitted that some projects were given to AMS. EG also acknowledged that cards were given to AMS from the child indicating he was "daddy".

EG's version of the events of the last 5 plus years is wholly incredible and belied by the testimony of the non-party witnesses who interacted with AMS, EG, and the child on a regular, if not daily basis. EG attempts to convince the Court she was leading a double life, and essentially that she was lying to everyone and trying to keep AMS from telling PS about the affair. This story is just not plausible and EG's demeanor and credibility is highly suspect. She vehemently denies she was living with the child with AMS despite the overwhelming evidence to the contrary. She admits G refers to the child as her "brother" but claims it was just a little girl playing house. She admits she referred to AMS as "daddy" but claims she was afraid he would tell PS about their relationship. She is steadfast in her belief PS is the father of the child, despite admitting they were not living together at the time of conception and that she had unprotected sexual intercourse with countless men who ejaculated inside her during the conception period. Although several of the witnesses who testified on EG's behalf (discussed more fully below), including PS, stated that she was using an "ovulation kit" to help her get [*6]pregnant by PS, she herself never testified to this.[FN6] Such omission, especially in the face of vigorous cross examination by AMS's counsel about how she could be certain of the parentage of the child, seriously undermines the credibility of these witnesses and EG. It is just impossible for this Court to accept EG's story at face value.

AMS testified on his own behalf over a period of several days, during which he cried or held back tears on several occasions while discussing the child and his relationship with the child. His demeanor in Court is in sharp contrast to EG's inability to recall until direct examination by her own attorney and the overall lack of emotion displayed while testifying. AMS testified that he first met EG in 2003 at a Christmas function and found out she was married and "walked away". He then saw her again in April of 2005 and they became friends. In September of 2005 she told him she was looking to get a divorce but they did not become romantically or sexually involved at that time. In November of 2005, EG asked him to go to a happy hour out east with her and another friend, LM. He testified that they went to a bar called the Broken Valise and a restaurant called the Red Door for dinner. They also went to EG's house in Laurel. AMS testified that he did not see any indication that a man lived at this house. In November of 2005, AMS believed that EG was separated from her husband and they began having sexual intercourse at that time. He testified he had unprotected sexual intercourse with EG between January and March of 2006 on average of three times per week. He did not believe EG was seeing any other men at that time and he never threatened to expose her relationship to PS.

AMS testified that EG told him she was pregnant and she had taken numerous home pregnancy tests while at his home. He offered to go to the doctor with her but she said she wanted to go with a girlfriend. AMS did testify that he went to several doctor's visits with EG and also to a high risk doctor with her where he was asked to give his personal information since he was the father. Both EG and AMS testified that AMS accompanied EG to her amniocentesis. AMS claims he was present for a sonogram in May or June of 2010.

AMS testified that during the early part of the pregnancy EG was not happy and was talking about terminating the pregnancy. He even testified that she once called from Colorado where she claimed to have gone for the abortion, but that he convinced her to come home and continue the pregnancy. AMS claims that during the pregnancy, in or about April of 2006, he also overheard a telephone conversation between EG and a man. He testified that he and EG were at his home and she was on the phone in the other room and talking "suspiciously". He picked up the extension and overheard EG say "P" and heard a male voice say "come home and we will raise the baby as our own". He told her to hang up the telephone and asked her what was going on. She apologized and made him promises and insisted she would move the divorce process along. Although he offered to go with her to her divorce attorney, EG would not permit him to go with her.

AMS testified that he drove EG to the hospital when her water broke and was in the [*7]delivery room when the cesarean section was performed, as reflected in the numerous photographs submitted into evidence. The baby was six weeks premature and in the neonatal intensive care unit. AMS knew the time of the baby's birth and the baby's birth weight. PS was not present when the baby was born, although AMS claims a nurse told him that PS did come to the hospital. AMS never saw PS at the hospital.

With regard to the baby's name, AMS testified that the child's name was always "AMS, IV". He was unaware there was no name on the birth certificate until they were home and a nurse from the hospital called and he answered the telephone. He gave the telephone to EG who gave the name of the child as AMS, IV. When he asked her why he wasn't listed as the father, EG told him she couldn't put his name on the birth certificate because she was still legally married to PS, but that she would change it when she got divorced. AMS stated that he believed EG's story and didn't press the issue further.

AMS set forth a time line of where he believed EG and the child were living from birth until commencement of this proceeding. He testified that in October and November and most of December of 2006 EG and the child were living with him but he didn't specifically remember where they were in December of 2006 or whether they spent that Christmas with him. At some point in December of 2006 or January of 2007, EG and the child moved out and he believed she was living with either her friend LM or her father. He testified that he went to see them several times a week. In or about May of 2007, AMS served a paternity and custody petition on EG. However, prior to the return date of the petition EG called him and asked him whether he had any doubt that he was the child's father and that she loved him and wanted to get back together. She and the child then moved back in to AMS's house and he did not proceed with the petition.

AMS testified that for the rest of 2007, 2008 and 2009, EG and the child lived with him continuously and he didn't recall any period of time she wasn't there although sometimes she would be gone for the weekend either with or without the child. The only extended absence he remembers is when she allegedly went to visit a friend in Westchester who was recovering from surgery. In January 2010, EG moved out with the child and claimed to be living with a friend "M" in East Setauket. EG would not let him visit them there but she continued to bring the child to see him during the week and on weekends. Also, EG continued to work at his home on Mondays after she moved out, in the home office he created for her.

AMS testified that he went to pediatrician visits with EG and the child and filled out the insurance form with EG which listed him as the father (Petitioner's 43 ). He claims he went to a few well visits and a few sick visits but didn't specifically remember which visits although he remembered holding the child when he received certain shots.

AMS had no idea that in 2007 the baby was being watched by SM, but instead believed he was being taken care of by a girlfriend of EG's father in Sayville. He was able to identify the day cares for 2008 (ABC), 2009 (XYZ) and 2010 (123). He indicated that EG took care of the child care issues and paid the fees even though he offered. He claims that EG said it was the least she could do since he paid all of their other living expenses. [*8]

AMS testified that toward the end of 2009 he believed EG was divorced because she showed him a paper with her name and PS's name that said "divorce" on it. EG told him they were just waiting for a judge's signature for it to be final. He never asked her about it again because he believed she was divorced.

AMS testified about an incident in 2007, around the holidays, when the child was having trouble breathing and they took him to the hospital. At the time, EG and the child were living with him, he was registered at the hospital as AMS, IV and AMS's insurance covered the hospital stay. AS also went to the hospital. When questioned whether PS was at the hospital, AMS said "absolutely not". Again, in 2010, EG called him because the child hurt his chin and had to go to the hospital. Although this was after they moved out of his house, he believed the injury occurred at her friend "M's" house. AMS later accompanied EG and the child to a plastic surgeon in Commack and the visit was covered by his health insurance.

Also admitted into evidence (Petitioner's 24) was a document from a company called "Viacort". The document was an authorization to release the umbilical cord cells of the child which were collected at birth but insufficient to preserve for future use by the child. The document was signed by EG as mother and AMS as father. Notably, AMS also introduced into evidence the envelope the document was sent in, which indicated it was addressed to AMS and EG at AMS's address (Petitioner's 65). AMS also submitted into evidence other envelopes addressed to EG at his address (Petitioner's 20a and 20y).[FN7]

AMS testified that he spent Christmas Eve and Christmas Day with EG and the child in 2007, 2008 and 2009. He also testified they spent Thanksgiving 2007, Easter and Thanksgiving 2008, and Easter and Thanksgiving 2009 together with EG and the child. AMS's daughter G was also often present. During these years they also attended various holiday parties and Easter egg hunts at the clubhouse in the community where AMS lives (as testified to by MM, a neighbor, events coordinator and member of the Board of Directors where AMS lives).

AMS testified that he broke up with EG Labor Day weekend in 2011 when he discovered she was seeing another man. He submitted into evidence an email exchange that occurred between him and EG between September 18, 2011 and September 24, 2011 (Petitioner's 59 a, b and c). In the initial email from AMS to EG (Petitioner's 59c), AMS proposes a joint custodial arrangement to EG for the child, including specific provisions for holidays, birthdays, medical expenses and child care. In the email, AMS asks EG to read, review and revise his proposal and indicates he wants to "expedite" as he wants to "put this past us". The next day, September 19, 2011, AMS again emails EG (Petitioner's 59a) and advises that he was not listed to pick up the child from school. EG responds later that day (Petitioner's 59b) and indicates that she is "reviewing" his "proposal" and further indicates that she was "[s]orry that you couldn't keep your dinner plans with "A" today." (Petitioner's 53 and 59b). On September 22, 2011 at 9:33 a.m., AMS emailed EG again (Petitioner's 59b) indicating that he had not heard from her about the proposal and that he wanted to make sure she took care of notifying the school and aftercare that he could pick up the child. At 10:16 a.m., EG responded that she was in a meeting and [*9]would call him later (Petitioner's 59b) and AMS responded later that day (at 8:54 p.m.) that he was still waiting to hear from her (Petitioner's 59b). Finally, on September 24, 2011, AMS emailed EG that he was still waiting for a response (Petitioner's 59c). Curiously absent is any abject refusal by EG to entertain any proposal on the ground that AMS is not the child's father.

AMS submitted 148 photographs, excluding duplicates, in evidence, as well as 2 collage photographs and video of his life with EG and the child. In addition to the numerous photographs of AMS with the child, of particular note was a professional photograph of AMS, EG, the subject child and G (Petitioner's 49a). This was nothing short of a "family portrait". Also, the Court takes note of the numerous cards, preprinted and handwritten, given to AMS by EG and the child as "daddy". He also submitted a computer mouse pad into evidence with two pictures of the child, given to him by EG (Petitioner's 54). Photographs of the child's room at AMS's house were submitted into evidence (Petitioner's 21, 22, 47b, 47c, 47d and 47e) and AMS testified he purchased the furniture at Direct Buy (Petitioner's 44 and 46).

The extent of photographic evidence is overwhelmingly to the point of almost indescribable. From 2006 through 2010 and continuing in 2011, the photographs methodically depict AMS with the child at every stage of his life, with friends and family and EG. Significantly, AMS submitted photographs of the child's birthday celebrations from ages 1 to 4 years old, inclusive (Petitioner's 16f, 17k, 18w, 19i, respectively). There are individual pictures and collages and video segments of AMS, EG and the child on Christmas morning in 2009, and a photograph of Christmas 2010. In the face of all of this, the Court is both skeptical and deeply troubled by EG's wholesale denial that (1) she never told AMS he was the father; (2) she never told PS about AMS until September of 2011; (3) anyone else but PS could be the father of the child; and (4) that she and the child never lived with AMS. The Court is also troubled by EG's behaviors and the measures she took to allegedly conceal her deceit, all the while with a very young, impressionable child in tow. All of AMS's witnesses testified credibly that they observed AMS, EG and the child acting as a family, and particularly, AMS, as a loving father who participated in many activities with the child. Moreover, EG's repeated assertion that AMS was threatening to expose their affair and ruin her career is wholly incredible and rejected by this Court in toto. EG lived with AMS, entertained family and friends at his house as if it were her own, entertained at least one business associate at the home (AM), attended a wedding with AMS, G and the child, as a family, attended numerous events at the gated community and frequented restaurants, beaches and other public places with AMS. Also, EG signed several documents listing AMS as father, such as the information form at the doctors' offices and the hospital, the Viacort form and the Sayville school registration forms. Also, the name change petition which was published in more than one newspaper, listed the child's name as AMS, IV.

Since there was much testimony that the one time EG slept over AMS's house with the child was due to snow or a "snowstorm" on Christmas Eve 2009, as EG and her witnesses alleged this was the only time she spent the night at AMS's with the child, AMS asked the Court to take judicial notice of the weather on December 24, 2009 and December 25, 2009. The Court granted the application and directed that counsel submit website information to assist the Court in determining the weather on those days. Counsel all submitted website information regarding [*10]the weather on the relevant dates and AMS's counsel actually submitted a printed report.[FN8] Upon a review of the website provided by AMS, www.wunderground.com/history, there was no snow on December 24, 2009 or December 25, 2009. The web sites provided by EG's and PS's counsel merely indicated that there was going to be a "White Christmas" based upon a snow storm that occurred on December 19, 2009. This was non-responsive to the Court's inquiry or the issue at hand and undermined EG's explanation as to why she spent Christmas 2009 with AMS and slept at his house with the child.

If the Court's inquiry could end here, EG and PS should be estopped from denying AMS is the father of the child. Unfortunately, as was revealed in later testimony, EG went to extraordinary measures to create an estoppel claim on behalf of PS, where, this Court believes one did not plausibly exist prior to 2010.

After the conclusion of AMS's testimony he rested, subject to calling any rebuttal witness.

RESPONDENT, EDG'S CASE

EG testified on her own behalf and called three witnesses, SM, LM and GC-G in support of her position.[FN9] As set forth above, SM testified that she babysat the child when EG returned to work in February 2007, until December of 2007. SM's husband is a partner in the insurance firm where PS is a senior partner. She testified that she essentially watched the child from Monday to Friday and EG would drop him off and PS would pick him up. She did not know AMS. From 2009 to 2011 she observed PS at the company picnic with the child. EG was not present on these occasions and PS would take care of and play with the child, whom he introduced as his son. SM had not celebrated any birthdays or holidays with the child, EG or PS.

LM testified next that EG and PS are both friends of hers and PS is also her employer. She met EG in or about 1999 or 2000 through the insurance business and met PS shortly thereafter. She is personal friend of EG's and they socialize a few times a month. She testified that EG and PS wanted to have children and in 2005 EG told her they were going to start trying and they had been holding off because of their careers and they both had parents who were sick. LM also testified that she knew AMS and actually worked for him from November of 2004 until May of 2006 when he fired her. LM testified that at an office happy hour on April 28, 2005 she overheard AMS ask EG out but she said she was married. LM claims she told AMS to leave EG alone because she was married but he said he didn't care. She also testified that she, EG, PS and AMS went on an insurance industry trip to the Bahamas in November of 2005 and EG and PS were affectionate, holding hands, etc. during the trip. LM alleges that between November of [*11]2005 and the spring of 2006 AMS would try to get her (LM) to invite EG out with them and would tell her he didn't care if EG was married. At some point after November of 2005, EG confided in her that she was becoming romantically involved with AMS and LM told her to stop.

LM testified that she didn't know that EG and PS were having marital problems but only that EG was unhappy about living out east in Cutchogue. EG admitted to her she was having sexual relations with AMS and other people but was afraid to break it off with AMS for fear he would tell PS. LM testified in March of 2006, EG told her she was pregnant with PS's baby and that she knew it was PS's baby because she was tracking her ovulation. LM claims she told AMS that EG was pregnant in April of 2006 and he walked off.

After the baby was born, and was released from the hospital, LM claims that EG called her and said that AMS told her to move in or take the baby and move out. EG then went to LM's house with the baby and she told PS she was at LM's, where she stayed until right before Christmas in 2006. LM claims PS came to the house daily after work and he would feed, burp, change the baby and sometimes take the baby with him on weekends to Cutchogue. She testified she only believed AMS came to the house twice, he didn't care for the baby at all, and one of the times the baby was not even there and was with PS.

LM claims she heard the child called "M", that she picked him up from day care at least 5 or 6 times and that PS would then pick him up and he would call him "daddy".

On cross-examination LM admitted that the week after AMS fired her, PS hired her and she earns a salary of $72,000.00 per year. She considers EG one of her best friends, but she did not go to the hospital when the baby was born. Although EG told her she was having sexual intercourse with AMS, LM claims that EG had a good relationship with PS and there was no reason to believe he was not the father. LM also admitted that she knew the child was also referred to as "A", and was listed on AMS's health insurance, but denies knowledge of any birthday parties or holidays spent with AMS or exactly how many times EG brought the child to AMS's house. On examination by the Attorney for the child, LM testified that she believed EG's romantic relationship with AMS continued until mid-2011 and although EG may have slept over, LM said she never brought the child. However, LM admitted that from 2007 to 2010 EG brought the child to AMS's but only she stayed over. EG would leave the child either with PS or GC-G. LM also testified that in 2006, 2007, 2008, 2009 and 2010, EG "stayed" with her, EG's father, and GC-G a lot, but she was "living" in Cutchogue.

GC-G also testified on behalf of EG and stated that she knows EG, PS and AMS. She is a co-worker of EG and "best friend" for about 20 years. In some ways, GC-G's testimony mirrored that of LM, but in other ways it dramatically diverged. Although GC-G testified that EG began her relationship with AMS in late 2005, she testified that EG and PS were having marital problems, which at one point in her testimony she described as "heartbreaking". Again, apparently EG told this witness that she was having sexual intercourse with AMS and various other men in this time period. However, GC-G also testified that in or about October of 2005 EG and PS wanted to try to have a baby and that they were using an ovulation kit. GC-G was certain that EG was living with PS when she conceived and that she was always living with him [*12]during the pregnancy. This witness did not go to the hospital to visit EG either and indicated that she was home with a stomach virus. She did not go to visit the baby during his 2 week hospital stay because it would make her "too upset". GC-G claims she spoke to EG every day, two or three times, when she was in the hospital, and even spoke to PS once on EG's cell phone. EG told her that AMS "stopped by" a few times and she was afraid that PS would find out and it would it "ruin things".

GC-G testified that between October 2006 and December 2006 EG resided with PS in Cutchogue, although sometimes she would stay with LM, her dad or herself. She further claims PS would tell her how much he loved EG and the baby. She also claims that EG told her that AMS demanded and insisted that she put his name on the child's birth certificate. From 2006-2011, GC-G testified that she knew that EG went to AMS's house but she didn't bring the child and didn't stay there, except for a snow storm on Christmas Eve of 2009. She also testified that on Thanksgiving 2009, EG called her and begged her to come to AMS's house, and she did. She claims that when she called the child "M", EG pulled her aside and begged her not to in front of AMS's family.

GC-G also testified on one occasion during EG's pregnancy, EG called her "hysterical" but that she didn't go to help her best friend because she wouldn't be able to gain access to the gated community. She conceded on cross-examination that she didn't call the police or anyone to make sure EG was okay and even though she had been to AMS's house previously, did not event attempt to go, notwithstanding the "hysterical" telephone call from her best friend.

As with LM, GC-G is certain that PS is the child's father, despite her friend's disappointing admissions to her that she was sleeping with AMS and several other men. GC-G also admitted that she was unaware that EG celebrated birthdays and holidays with AMS or that she had a transmitter to access AMS's community. On examination by the attorney for the child, GC-G testified that she had no safety concerns about the child's care with either EG or PS. However, she did express concerns about the child with AMS. Specifically, she indicated that she had concerns for the child's "mental safety" with AMS, because she observed him call the child a "sissy" on one occasion and EG told her he did that on other occasions. On redirect by EG's counsel, she later indicated that she also had safety concerns because EG relayed an incident wherein AMS left the child unattended sitting on edge of a dock and once unattended with hedge clippers. She did not mention these incidents on examination by the attorney for the child, but only after the lunch break, which she admitted she spent with EG and PS. EG never mentioned these concerns in her testimony. Following up on GC-G's testimony, the Court asked the witness whether she would have concerns for the child's "mental safety" if she knew that EG called AMS daddy and the child "A" when in AMS's presence and called PS daddy and the child "M" when with PS. The witness repeatedly indicated that she did not understand the question which the Court continued to explain. Finally, GC-G just said "it's not possible" and that she couldn't answer the question.

This final response by the witness emphasizes to the Court that EG's witnesses, particularly LM and GC-G did not know the extent to which EG was living with AMS and leading a "double life" with AMS and PS, if in fact she was truly accomplishing this feat. [*13]Alternatively, and just as likely to the Court, they had some idea, disapproved of EG's choices, but supported her, even when they knew she was being dishonest. The bias of LM is evident in that she was fired by AMS and is employed by PS. GC-G appeared to have a story she wished to tell the Court when she first took the stand and her demeanor was confident, she spoke quickly and knew exactly what she wanted to say. When faced with evidence of the extent of her friend's deceit, her demeanor changed, her answers to questions became more guarded and she indicated she did not know or did not recall answers to many questions. As someone who is EG's self proclaimed "best friend" for 20 years, it strains the bounds of credibility that she did not know what EG was doing over the course of several years.

At the conclusion of GC-G's testimony, Respondent, EDG, rested subject to any rebuttal witnesses.

CO-RESPONDENT, PS'S CASE

PS testified on his own behalf and submitted 155 photographs, cards and school projects given to him by the child. He testified that he and EG met in the early 1990's and were married April 28, 1996. He admitted that when they were first married, they spent time living apart because they each liked to spend time with their own friends and family. According to PS, they wanted to have children but wanted to focus on their careers and travel first, and then each, unfortunately, had to care for a sick parent. PS's mother passed away in July of 2000 and EG's mother in 2003. In 2005, they discussed having children, and prior to that they used birth control when having sexual intercourse. After 2005, he asserts that they did not use birth control and had unprotected sexual intercourse 2-3 times per week. He also claims that EG was using ovulation testing to predict when she could conceive. PS stated that EG told him on March 1, 2006 that she was pregnant and that he was "thrilled" and it was his "dream coming true".

PS claims that EG told him about the affair with AMS at some point in September of 2011, prior to the commencement of these proceedings. Although he was devastated, ultimately he realized that family was the most important thing, and testified he never doubted his parentage of the child.

PS stated that he attended EG's prenatal appointments which initially were monthly and then bi-weekly.

When the child was born, he was away playing golf in North Carolina and drove home, according to EG, arriving 10 hours after EG called him. He went to the hospital every day, usually in the mid to late morning but his family did not go to the hospital at all. PS admitted that EG went to LM's when she was released from the hospital because she "needed some time", but that she never removed her belongings or moved from the Cutchogue house. He testified that EG and the child remained at LM's until right before Christmas 2006 and he went there almost every day to "give EG a break". He alleges at those times he took care of the child, feeding, burping and changing him. On the weekends, he would take the child with him back to Cutchogue, and sometimes EG would go with them, but on other weekends it would just be him and the baby alone. PS testified he purchased all the supplies for the baby. [*14]

PS claims that from the end of 2006 through the present, EG and the child have been residing with him, that he only calls the child "M" and that he has cared for the child continuously. PS's testimony regarding child care mirrored that of EG. In 2007 when EG returned to work, SM watched the child in Jamesport and she would usually drop the child off in the morning and they split the pick up of the child from the babysitter. The child had a room in the Cutchogue house with a crib and changing table and was decorated with a sports theme. In 2008, he and EG agreed to move the child to ABC because they believed he needed some socialization with other children. Even though ABC was located in Oakdale, it was more convenient because of EG's work schedule. PS testified he only went to ABC once or twice.

PS alleges that the child got sick quite often while at ABC and he stayed home with him several times. Although PS claims he went to both sick and well pediatrician appointments, he claims he never heard the child called anything but "M" at these appointments. He claims when the child was young he would wait in the car with him until it was time to go into the examination room, so as to not expose him to other germs. The Court must comment on the lack of credibility of these assertions regarding the pediatrician appointments, as EG herself testified that the child was named "AMS, IV" at the pediatrician's office. PS indicated that the child suffered from bronchitis which required nebulizer treatments which he administered even during the night. PS claims he never picked up a prescription for the child at a pharmacy, and even while dispensing medicine for the child, he never read a prescription bottle with the child's name on it. Instead, EG would write out instructions for him on how to administer medication. Again, given PS's and EG's testimony that PS was intimately and continually involved in the day-to-day care of the child, the Court finds this testimony wholly incredible.

In 2009, he and EG discussed and agreed to move the child to XYZ day care in Islip and that EG was responsible for most of the transportation. PS testified he attended one event at XYZ, where he referred to the child as "M" and introduced himself as the child's father. During all these times (2007-2009), EG, PS and the child would have family dinners together at the end of the day.

In 2010, the child care again changed to 123 in Rocky Point. According to PS, he and EG again discussed and agreed moving the child because 123 had a quality pre-kindergarten program. At this point, the Rocky Point location was easier for him to pick up the child at the end of the day, but less convenient for EG. He testified that he attended numerous events at this preschool, and offered photographs in evidence in support of his claim. PS also submitted several art projects given to him by the child while attending 123. The Court notes that although the child has been attending day care facilities since 2007, EG and PS did not seek a deduction on their joint income taxes for such expense until 2010 (Respondent G's GGGG). Moreover, neither EG nor PS submitted any canceled check or other receipt evidencing payment of the day care expenses.

PS testified that EG always called the child "M" or "sweetie", and the child always responded to the name "M" without any hesitation. PS also reiterated that at all of the day cares he attended, he called the child "M" and introduced himself as the child's father. The Court notes that while PS (and EG) submitted numerous photographs of the child, a significant number [*15]of these were of the child alone, which, in this case are not relevant. The majority of the photographs of PS with the child appear to be when the child was older than 3, which essentially coincides with January of 2010, when AMS admits EG moved out of his house. There are significantly less photographs before that time containing PS and the child together. Further, PS submitted a number of multiple photograph sets depicting the same event and/or day and/or holiday. For example, there are 15 photographs of the child opening/playing with presents taken on the same day (PS's M1 to M15), 8 photographs of PS and the child on the same train outing (PS's Z1 to Z8), and 7 photographs of the child at the same beach outing (PS's JJ1 to JJ7). Notably, sparse are pictures of PS and the child from birth to one year old and there are no photographs of PS in the hospital when the child was born. The photographs of the child as a newborn or infant submitted by EG or PS showing the child by himself, are irrelevant to EG's or PS's estoppel claims. PS testified that from 2007 to 2012, EG and the child lived continuously with him in Cutchogue, so the relative paucity of photographs of PS with the child from birth to approximately age 3 is palpable.

With regard to the child's name, PS testified that at some point in 2007, EG told him that the hospital had made a mistake on the birth certificate (which he alleges he did not see), and instead of the child's name being listed as "MA", it was listed as "AM". No mention of the last name was discussed, and he assumed it was G. EG and PS discussed the matter with an attorney and then EG was going to take care of the paperwork to legally change the child's name. PS testified that EG brought him a paper to sign, at his office, he hurriedly signed it in the presence of a notary in his office, and EG filed the papers. PS claims that the paper he signed was "covered up" by other papers and the only thing he saw on the paper was "MAG", which was located above the place for him to sign. Notwithstanding that the name "AMS, IV" appears four (4) times on the single page document (Attorney for Child 5), PS insists he never saw that the name "AMS, IV" on the document, nor did he ever see the Petition seeking to change the child's name (Attorney for child 6) or the Order changing the child's name from AMS, IV to MAG (Respondent G's IIII). On cross-examination, PS admitted, with the use of a ruler, that the name "AMS, IV" was located approximately ¼ inch from where he signed the consent form. Again, it strains credulity that PS did not see the name "AMS, IV" on the document he signed, which was notarized. Also, PS's testimony that the papers were "covered up" was only after several days on the stand. Further, he admitted he went to the Suffolk County Clerk's office to obtain a copy and apparently discussed the matter with EG, despite an admonition from the Court not to discuss his testimony.

Equally troubling, PS further acknowledged on cross-examination that he went with EG to an abortion clinic in Colorado in or about August of 2006 when EG was between 25 and 27 weeks pregnant, despite testifying that when he found out in March of 2006 EG was pregnant his "dreams had finally come true". When questioned why he did this, he stated that he was supporting EG at the time because she "wasn't sure what she wanted", and "she was going through a difficult time." Earlier in his testimony he indicated that EG had an amniocentesis and the results were "border line" for Down's syndrome and she was concerned, even though it didn't matter to him. Again, EG did not provide any testimony regarding this information.

Essentially, PS's testimony was replete with denials of any knowledge of EG's [*16]relationship with AMS until September of 2011. He testified that on Christmas Eve 2009 she stayed at GC-G's because of a "snowstorm" and that she didn't return to Cutchogue until sometime late in the afternoon (5 or 6 p.m.) on Christmas Day. PS could not explain GC-G's testimony that she spent Thanksgiving 2009 with EG at AMS's house which contradicted his own testimony as well as that of his sister that EG and the child were with them on Thanksgiving Day in 2009.

PS insisted he was present for all of the subject child's "firsts" — including his first steps, and first haircut, but admitted he was not present on the child's first day of kindergarten in the Sayville School District (except allegedly to pick him up after school) or the day the child was born. PS did not know that AMS was present on the first day of kindergarten. PS did not know that EG registered the child as AMS, IV for kindergarten, but testified that he was registered as "A" because EG could only find the original birth certificate when she registered the child. He testified they (he and EG) discussed and agreed to register the child in Sayville, approximately an hour from Cutchogue, where they lived, because they were discussing purchasing EG's father's house in Sayville. He admitted the purchase of the Sayville house did not come to fruition and they moved the child to school in Cutchogue. EG and PS never paid taxes in the Sayville School District. PS did not mention any concern that the Sayville School District became aware that the child did not reside in Sayville (as testified to by EG).

Upon examination by the attorney for the child, PS was asked whether EG ever stayed out overnight with the child. Despite EG's description of traveling regularly for her job, PS testified that she did not travel overnight very often. With the exception of Christmas Eve 2009, PS could not (or would not) name a single incident he recalled that EG and the child did not sleep overnight in Cutchogue and he could not give a number of times EG was not home in Cutchogue with the child. Also, PS did not recall if he had a bracelet in the hospital when the child was born.

PS called his sister, CS, as a witness on his behalf. The gravamen of CS's testimony was that she celebrated Easter, Christmas Eve, Thanksgiving and birthdays with EG, PS and the child, every year from 2007 to 2011. She did not go to the hospital when the child was born and neither did her father (the child's grandfather). CS never heard the child referred to as anything but "M" and she had never heard of AMS. CS could not recall any holiday that EG and the child were either not present or left early. She did not know whether EG ever lived with friends or her father and didn't know the child went to kindergarten in Sayville.

PS rested after the testimony by his sister.

The attorney for the child called EG as a witness. Certified records of the Sayville School District were submitted into evidence (Attorney for Child 6). The records indicate the child was registered as AMS. Neither AMS nor PS were listed as an emergency contact for the child and in fact, PS's name is not listed on any of the Sayville school records submitted into evidence. EG's driver license, Citibank bill and Chase statement, contained within the record all list Sayville as her address (and the Court notes the issue date of the license was October 25, 2010). [*17]

Finally, the Court conducted an in camera interview of the child. While not sworn, the child was able to explain the difference between the truth and a lie. Thus, the Court credits his unsworn testimony. The Court found the child to be personable, articulate and perceptive.

THE LAW

Family Court Act §417 entitled "Child of ceremonial marriage" provides that:

A child born of parent who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of such marriage.

It is well settled that "a child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and persuasive known to the law". Marilene S. v. David H., 63 AD3d 949, 882 N.Y.S.2d 155 (2d Dept. 2009)(internal quotations omitted). See also, Walker v. Covington, 287 AD2d 572, 731 N.Y.S.2d 485 (2d Dept. 2001). However, the presumption may be rebutted by clear and convincing proof "excluding the husband as the father or otherwise tending to disprove legitimacy". Alberto T., v. Tammy D., 274 AD2d 587, 712 N.Y.S.2d 392 (2d Dept. 2000)(internal citations omitted).

In this case, the Court finds, by clear and convincing evidence, that Petitioner, AMS, has met his burden of overcoming the presumption of legitimacy. EG herself testified that she had unprotected sexual intercourse with AMS during the conception period, as well as with other men. Although PS attempts to confuse the issue by claiming EG was using an ovulation kit, such testimony was not only unbelievable, but was not supported by EG's own testimony. Moreover, based upon the testimony that the parties were not always living together and had marital problems, the Court is extremely skeptical that EG and PS were living together, let alone having sexual relations at or about the time of conception.

Family Court Act §532(a) entitled "Genetic Marker and DNA testing" reads in part:

The Court shall advise the parties of their right to one or more genetic marker tests, or DNA tests and, on the court's own such motion or the motion of any party, shall order the mother, her child and the alleged father to submit to [such] tests. No such test shall be ordered, 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.

As explained by the Court of Appeals in Shondel J. v. Mark D., 7 NY3d 320, 820 N.Y.S.2d 199, 853 N.E.2d 610 (2006):

The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to [*18]the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position.

See also, Charles v. Charles, 296 AD2d 547, 745 N.Y.S.2d 572 (2d Dept. 2002); Janis C. v. Christine T., 294 AD2d 496, 742 N.Y.S.2d 381 (2d Dept. 2002).

In a recent case, the Second Department explained the significance of the equitable estoppel doctrine. In Felix O., v. Janette M., 89 AD3d 1089, 934 N.Y.S.2d 424 (2d Dept. 2011) the Court stated:

The paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child. In situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role, the petitioning putative father has been estopped from asserting a claim of paternity. Moreover, the doctrine of estoppel is invoked in paternity proceedings to preserve the status of legitimacy of the child. The issue of equitable estoppel does not involve the equities between [or among] the ...adults; the case turns exclusively on the best interests of the child.

(internal citations and quotations omitted).

As between, AMS and EG, it is unequivocal that equitable estoppel should apply to bar EG from denying AMS is the father of the child. The exhaustive evidence and testimony demonstrates that EG's actions led AMS to believe that he was the father of the child and further that he did not need to file a paternity petition to assert his rights. In reliance on her representations, he developed a strong, loving parental relationship with the child, held himself to the public as the child's father, and paid for the child's expenses, including health insurance. However, EG complicated this situation by somewhat simultaneously holding another man to hold himself out as the father of the child and allowing that man, PS, to develop a parent-child relationship with the child, albeit in this Court's opinion, a weaker relationship prior to September 2011. Although EG's general and vague testimony and her frequent unwillingness to directly, consistently and concretely answer a question on cross-examination, made it impossible to pinpoint exactly where she and the child were staying at all times between the child's birth and September of 2011, the documentary evidence indicates that at various times from October of 2006 through September of 2011, EG held each man out as the child's father. For example, on the 2008 XYZ registration, she listed PS as the child's father (Respondent's OOOO), but the August 31, 2011 Sayville Kindergarten registration papers listed AMS as the child's father (Attorney for Child 7). The October 25, 2006 patient registration at Dr. Marawalla's office (Petitioner's 43) lists AMS as the child's father.

Thus, in adopting the doctrine, this Court can only assume it was never intended to apply to the unique facts and circumstances of this case. The Court has been unable to locate any published case with facts even remotely similar to the case at bar. Where, here a mother tells a child to call two different men daddy and calls the child by two different names during the same [*19]time period, an estoppel claim can hardly lie. See, e.g., Marilyn C.Y. v. Mark NY, 64 AD3d 645, 882 N.Y.S.2d 511 (2d Dept. 2009)(confusion as to parentage caused by mother). Although the Court is not completely convinced that EG told PS he was the biological father, the inquiry cannot end there. As set forth in Felix O., supra., that either or both of these men may be aggrieved is not of paramount concern, but rather, the best interests of this child controls.

It is abundantly clear, based upon the exhaustive testimony, photographic and documentary evidence, and the in camera of the child, that EG did a masterful job of allowing two men to hold themselves out as the father of this young child. Particularly, EG permitted AMS to hold himself out as the child's father, called the child "A", permitted them to develop a parent-child relationship and permitted the child to have a relationship with AMS's mother as the grandmother. See, Seth P. v. Margaret D., 90 AD3d 1053, 937 N.Y.S.2d 74 (2d Dept. 2011). EG also allowed a brother-sister relationship to develop between the child and AMS's daughter G. The child even has a bedroom at both houses and calls G his sister. Disturbingly, in furtherance of EG's scheme, it appears the child had the same or similar decor in both rooms with a "Cars" theme.

While it appears PS's relationship with the child from birth to age 3 - 3 ½ was less than that of AMS, there appears to have been some relationship, PS did hold himself out to be the child's father, called the child "M" and the child apparently called him "dad". From January of 2010 to September 2011, EG and the child spent significant time with both AMS and PS. She ostensibly held both men out to be the child's father (in the child's presence), and called the child both "A" and "M", depending on which man was present. Since September of 2011, EG prohibited AMS from seeing the child at all.[FN10]

The Court notes that AMS originally filed a paternity petition when the child was less than a year old. Although he withdrew the petition and waited to file until September of 2011, under the unique facts of this case, the delay is not a bar to his paternity claim (and neither EG or PS actually raised this issue). Moreover, the Court credits AMS's testimony that he withdrew his petition when EG, upon receipt of his 2007 paternity petition asked him if he doubted if he was the child's father and requested that they reconcile. AMS relied to his detriment on EG's statements and actions. AMS had a meaningful, loving, ongoing and continuous parent-child relationship with the child until September of 2011 when EG unilaterally terminated his contact with the child. At that point, AMS timely commenced the instant proceeding.

In sum, after a careful review of all the testimony and evidence, and observing the credibility of the witnesses, of significance to the Court in reaching this determination were the following uncontroverted facts:

AMS was present in the delivery room for the birth of the child and PS was not present (or even in [*20]the state of New York);

EG named the child AMS, IV on his birth certificate;

For almost five (5) years, EG referred to AMS as "daddy" in the presence of the child, and permitted the child to call AMS "daddy";

d.EG called the child "A" while with AMS, and in the presence of others;

e.EG allowed AMS to cover the child on his health insurance from birth until 2011, and utilized his insurance coverage for the child;

f.AMS was unaware that EG was bringing the child to PS and allowing PS to hold himself out as the father of the child.[FN11]

g.AMS's mother came to visit EG and the child in the hospital when the child was born, and conversely, none of PS's family went to the hospital during the baby's two week stay. She also went to the hospital when the child had breathing problems;

h.The day care providers in 2008 and 2009 and the child's pediatrician from birth until 2011 were located within 10 - 15 minutes of AMS's residence and at least one hour from PS's residence;

IEG signed several documents listing AMS as the father of the child;

j.PS is not named on either the original or amended birth certificate and the child does not, to this day, have PS's surname; and

k.The child's address on both the original and amended birth certificate is that of AMS.

"Resolving questions of credibility, determining the accuracy of witnesses and reconciling the testimony of witnesses are for the trier of fact". Kahn v. Spira, 88 AD3d 964, 932 N.Y.S.2d 76 [2nd Dept. 2011]; see also, Matter of Binns v. Boyd, AD3d 1058, 885 N.Y.S.2d 84 [2nd Dept. 2009]. It is well established that "...great deference is accorded to the fact finders, who had the opportunity to see and hear the witnesses" Fekry v. New York City Tr. Auth., 75 AD3d 616, 906 N.Y.S.2d 297 [2nd Dept. 2010]; see also, Matter of Uriah D., 74 AD3d 1194, 904 N.Y.S.2d 164 [2nd Dept. 2010], and as trier of fact, this Court's "...determination regarding the credibility of the witnesses is entitled to great weight" Strully v. Schwartz, 255 AD2d 593, 680 N.Y.S.2d 871 [2nd Dept. 1998] see also, Matter of Liza O. V. Sanchez, 47 AD3d 632, 849 [*21]N.Y.S.2d 594 [2nd Dept. 2008]. In evaluating the competing equitable estoppel claims of AMS and PS, the credibility of the parties was of crucial importance, and over the 20 days of the hearing, the Court had extensive opportunity to assess the demeanor, affect and credibility of the parties while they testified.

As discussed above, not only was EG's testimony simply incredible in several regards, but her affect and demeanor during her testimony was significant and revealing. During her direct and cross-examination by counsel for AMS, EG's demeanor was predominately flat and emotionless, she frequently answered that she did not remember and, as noted above, when asked to identify events or objects in photographs, she frequently could not, or would not, identify or describe clearly depicted objects or events. However, when examined by her own attorney, she became animated and verbose and her memory improved tremendously. There are several examples of EG's testimony contradicting documentary evidence. For example, despite Petitioner's 20J in evidence, EG denies giving AMS a card saying AMS was a good father. EG testified on re-direct that her mail, such as "bank statements...any kind of mail really" (TR, 3-14-12, page 168] went to PS's house in Cutchogue, yet an August 2011 Citibank bill and a March - April 2011 Chase statement, which were included in the Sayville kindergarten records, were addressed to EG at her father's house in Sayville (Attorney for the Child 7).

For the reasons discussed above, PS's testimony was also frequently not credible. As discussed above, PS consistently proffered convenient explanations for why he was never aware that the child was called "A". The Court is particularly troubled by PS's testimony that he never saw the name "AMS, IV" in the name change application, which, as noted above, was written four times on a single sheet of paper. PS's professed failure to fully review the document he was signing is simply not believable.

The Court must also comment on EG's almost callous indifference to her in Court admissions that essentially she lied to the Sayville School District and also allowed her father to lie on an affidavit that she resided in Sayville. The Court must wonder why she made these admissions while testifying, which theoretically could result in criminal or civil liability in another forum. Likewise, she testified as to actions regarding the child's health insurance that could have other legal ramifications. It appears to the Court EG was not concerned about making these admissions because they were not true (i.e., she knew AMS was the father of the child, thus insuring him under AMS's policy was proper and she actually lived at her father's in Sayville when the child started kindergarten) and thus, she was really lying to the Court.

In the same tenor, as set forth above, EG's and PS's credibility was seriously negatively impacted by their story regarding the "snowstorm" or "snow" they claimed prevented EG from driving home to Cutchogue on December 24, 2009. EG and PS obviously created this story in preparation for their testimony and somehow convinced GC-G to repeat the story. Further, the Court feels constrained to mention the love letter/poem written by EG to AMS (Petitioner's 57). EG and PS and their witnesses attempted to mislead the Court to believe they were living with the child from 2007 through 2011 as "intact" "operative" family unit without any marital problems. Obviously, EG was lying to PS about her relationship to AMS since she was sending love letters (not to mention cards) to AMS, which is not characteristic of someone living in an [*22]operative family unit. Finally, neither EG, her witnesses, nor PS, adequately addressed, or explained, the many contradictions and inconsistencies in their narrative.

EG's wish to re-write the past in favor of her present, does not mean the past did not exist. The old expression that a picture is worth a thousand words was never more true than in this case. PS's testimony that he and EG lived together as an intact family since 2007 is belied by the obvious family life of AMS, EG, the child and G as documented in AMS's extensive photographs. Clearly, these photographs do not depict EG just "stopping by". The photographs also belie EG's testimony that she stayed with AMS because he threatened to "expose" her. Clearly, she "exposed" herself in the family life she created with AMS and the child.

As noted by AMS's counsel in his closing argument, EG's and PS's collective testimony can be best summarized by the Latin expression — falsus in unum, falsus in omnibus- false in one thing, false in everything. The Court agrees, and further finds, that in light of the overwhelming evidence, EG's and PS's arrogance in believing this Court would accept their story whole cloth is simply astounding.

Based on the foregoing, and all of the testimony and evidence before the Court, it is clear that neither equitable estoppel claim can prevail to the exclusion of the other party's claim. Accordingly, the Court is constrained to order a Genetic Marker Test and finds that it is in the subject child's best interests that a Genetic Marker Test be ordered. Accordingly, AMS's application in that regard is granted. While the attorney for the child's argument in opposition to the Genetic Marker Test based on fear that neither AMS nor PS are the biological father is compelling, it alone is insufficient to merit a finding of estoppel. Thus, AMS, EG and the child are directed to appear for a Genetic Marker Test on May 9, 2012.

This constitutes the Decision and Order of the Court.

Enter,

_________________________________

J.F.C.

Dated:May 4, 2012

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Footnotes

Footnote 1:Although AMS also filed petitions seeking custody and visitation, the Court cannot entertain those petitions until paternity is established.

Footnote 2:When shown Petitioner's 7 on December 7, 2011, EG refused to admit or acknowledge that the train birthday cake said "A". When confronted with Petitioner's 9k, 19l and19m on December 19, 2011, EG acknowledged that the train cake said "A".

Footnote 3:PS does attempt to explain away how he signed the consent without noticing the name AMS, IV. See below.

Footnote 4:PS confirmed during his testimony that it was not important that the child have his surname.

Footnote 5:The Court notes that despite the 288 photographs EG and PS submitted collectively into evidence, there is not one of PS in the hospital.

Footnote 6:In EG's and PS's closing arguments, both counsel refer to testimony by EG regarding use of an ovulation kit. Such statement is not supported by the record.

Footnote 7:When questioned about her mail, EG said "maybe junk mail" was sent to AMS's, but that was it.

Footnote 8:EG and PS offered a joint submission (Court's Exhibit 2) and AMS offered a website and the report (Court's Exhibit 1).

Footnote 9:As set forth above, EG also testified on her own behalf. Initially, AMS called her as a hostile witness. However, during what would have been her "cross-examination" by her own counsel, it was agreed that for purposes of this case it would then be considered her direct testimony as to avoid having to recall her to the stand. Counsel for all parties stipulated in this regard. She was then cross-examined by AMS's counsel and the attorneys for PS and the child.

Footnote 10:In Stephen W. v. Christina X., 80 AD3d 1083, 916 N.Y.S.2d 260 (3d Dept. 2011), the Court found that petitioner's delay in bringing his paternity proceeding was not a bar to his claim. There, as here, AMS was present at the hospital when the child was born, participated in the child's care and upbringing and his lack of contact was the direct result of EG's actions in relocating with the child.

Footnote 11:This distinguishes this case from cases where the Court has equitably estopped a petitioner from claiming paternity. Compare, Ettore I. v. Angela D., 127 AD2d 6, 513 N.Y.S.2d 733 (2d Dept. 1987); Purificati v. Paricos, 154 AD2d 360, 545 N.Y.S.2d 837 (2d Dept. 1989).