Matter of Karen H. v Deryl B.
Annotate this CaseDecided on October 10, 2013
Family Court, Monroe County
In the Matter of a Proceeding Under the Family Court Act, Karen H., Petitioner,
against
Deryl B., Respondent.
P-07470-13
DEREK THOMSON, ESQ.
Attorney for Petitioner
RON GEOFFREY LUGBILL, ESQ.
Attorney for Respondent
DEBRA ANN CROWDER, ESQ.
Attorney for the Child
Joseph G. Nesser, J.
Karen H., hereafter referred to as petitioner, petitioned the court on June 24, 2013 to declare that Deryl B., hereafter referred to as respondent, is the father of the child, Aviah
B., date of birth March 14, 2007, hereafter referred to as child. The respondent requested a genetic marker test, hereafter referred to as GMT to determine if he was the father. The matter was set down for an equitable estoppel hearing to determine if a GMT test should be ordered and [*2]whether the respondent should be declared to be the father of the child. The court found both
personal and subject matter jurisdiction and conducted a fact finding proceeding and finds as follows:
FINDINGS OF FACT
The first witness to testify was the petitioner and the court found her testimony to be credible. The petitioner testified that she had unprotected sexual intercourse with the respondent from May of 2006 until March of 2008 and that the child was born on March 14, 2007. She did not have sexual relations with anybody else during that time and has never been married. The petitioner testified that respondent held himself out to be the father of the child and the child knows him as her father.
The respondent was first notified that the petitioner was pregnant when she was five to six weeks pregnant. The respondent visited the child when she was two days old, but prior to that he was out of town.
The respondent had visits with the child at the jail more than five times and respondent called from the jail to conference with the child at least three to four times. Petitioner mailed respondent birthday photos of the child while he was in jail.
Since the respondent's release in August or September of 2012, he had many visits with the child. There were at least two visits per month at the maternal grandmother's residence for at least one hour. There was at least one overnight that the child had with the respondent.
The respondent had more than ten visits with the child last year alone and the respondent has interacted many times with the child. From May of 2006 to August of 2006, the respondent provided financial support to petitioner for the child in the way of clothes, diapers and food. The petitioner lived at respondent's residence from May 2006 until August 2006. The child calls respondent "daddy" as does the petitioner.
The next witness to testify was the respondent and the court did not find his testimony to be credible. Respondent did verify that the child visited him at jail. Respondent served a five year sentence, and his other daughter took the child for a visit at the jail. Upon release the respondent did visit with the child and admitted that he had a tattoo of the child's name on his arm. Respondent attended the child's kindergarten graduation and his last visit was five to six hours.
CONCLUSIONS OF LAW
Equitable estoppel is defined as where a party may by action, inaction or delay be estopped or barred from pursuing a claim or asserting a defense that would otherwise be available. The purpose of equitable estoppel is to prevent a person from asserting a right when
he has led another to form the reasonable belief that the right would not be asserted and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a
matter of fairness and its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who justifiably relying on the opposing parties actions has been misled into a detrimental change of position. See Shondell J. v Mark D., 7 NY3d 320 (2006). A putative father may be barred from establishing paternity. John Robert P v Vito C., 23 AD3d 682 (2nd Dept, 2005) Kristin D. v Stephen D., 280 AD2d 717 (3rd Dept, 2001). A party may be estopped from denying paternity if he actively creates a parent-child relationship with the putative father. Mark D., 7 NY3d at 320.
The best interests of the child are the paramount concern in determining whether or not to apply the estoppel defense. The best interests of the child include recognizing an existing parent-child relationship; avoiding irreparable loss of status; avoiding destruction of the child's family image; establishing legitimacy for the child; and avoiding any other physical or emotional harm to the child's well being. Mark D., 7 NY3d at 320. Family Court Act Section 418 states that no GMT shall be ordered by the court that is not in the best interests of the child on the basis of equitable estoppel.
In the instant case, the evidence was compelling that the respondent had held himself out for years to be the father of the child so that a parent-child relationship developed between the two and respondent shall be estopped from denying paternity and estopped from obtaining a GMT. The child justifiably relied on the representations of respondent that he was her father and to deny that would result in the child being harmed by respondent's denial of paternity.
Upon recommendations of the attorney for the child in her best interests,
THEREFORE, it is
ORDERED, that respondent shall be equitably estopped from obtaining a GMT (genetic marker test), and it is further;
ORDERED, that the respondent by clear and convincing evidence is adjudicated to be the father of Aviah B., date of birth March 14, 2007.
[*3]
NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.
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 COURT, OR 30 DAYS AFTER SERVICE BY A PARTY
OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Signed this 10 day of October, 2013
______________________________
HON. JOSEPH G. NESSER
FAMILY COURT JUDGE
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