Matter of B.C.M. v N.S.

[*1] Matter of B.C.M. v N.S. 2018 NY Slip Op 50436(U) Decided on February 15, 2018 Family Court, Yates County Cook, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2018
Family Court, Yates County

In the Matter of a Paternity Proceeding under Article 5 of the Family Court Act, B.C.M., Petitioner,

against

N.S., Respondent.

In the Matter of a Paternity Proceeding under Article 5 of the Family Court Act,

T.C., Petitioner,

against

N.S., Respondent.



P-00184-16



Katie A. Martens-Henderson, Esq.

Counsel for Petitioner B.C.M.

Paul W. Bleakley, Esq.

Counsel for Petitioner T.C.

Victoria L. King, Esq.

Counsel for Respondent N.S.

Peter H. Baker, Esq.

Attorney for the Child (AFC)
Jason L. Cook, J.

MEMORANDUM-DECISION

Petitioner B.C.M. filed a petition on May 3, 2016, seeking an order of paternity, the child M.S. having been born to the respondent on xx/xx/2012. Initially, the Support Magistrate ordered DNA testing. When the matter was next heard, even though the DNA tests determined that B.C.M. is excluded as the biological father, B.C.M. and respondent (N.S.) consented to a finding that B.C.M. is the father and an Order of Filiation was issued dated August 16, 2016. The Support Magistrate then immediately issued an order vacating the Order of Filiation on August 16, 2016, and the matter was transferred to the Family Court Judge.

Respondent later named petitioner T.C. as the biological father, whereupon T.C. was noticed, and upon the oral application of the AFC, DNA testing was ordered regarding T.C.. The DNA testing did not exclude T.C. as the biological father. It was not until after T.C.'s DNA results came back that B.C.M. made a motion for equitable estoppel, asking the Court to hold an equitable estoppel hearing and to block T.C. from asserting paternity of the child.[FN1]

The equitable estoppel hearing was held February 1, 2018. The Court having had the opportunity to observe the demeanor and responses of the witnesses at the hearing and having heard the testimony and due deliberation having been had thereon, now after considering the arguments of counsel and review of the entire record, the Court hereby decides and finds the essential facts and conclusions of law, which the Court deems established by a preponderance of the evidence, as follows:

FINDINGS OF FACTS

The proof shows that the child, M.S. was born on xx/xx/2012 and was five years old at the time of the hearing.

The respondent-mother had a sexual relationship with B.C.M., starting in approximately January, 2012. The parties did not reside together. The respondent was living in Hammondsport at that time. They were together for three months when the mother ended the relationship. Based on what the mother had told him, B.C.M. thought the child was his. He attended one prenatal appointment with the mother. Sometime during 2012 toward the end of N.S.'s pregnancy, B.C.M. and N.S. both resided in the home of M.H. for two months, but had not reconciled. They tried to work things out, but did not. They were not together at the time M.S. was born.

B.C.M. found out on the date of delivery that the child had been born. He first saw the child when she was three months old. At that time N.S. told him the child was his. He lived with N.S. and the child at his friend G's home from that time for about a month. During that time he spent every day with the child while the mother was at work. B.C.M. calls the child "M".

When the child was eight months old, the mother again told B.C.M. the child was his, and he re-established contact and began to visit the child two or three days a week for a short time. [*2]However, on approximately four other occasions prior to B.C.M.'s filing of his paternity petition herein, N.S. told B.C.M. the child was not his child.

When the child was approximately one and a half years old, B.C.M. began seeing the child again upon his belief that she was his child. During this period, before March, 2015, M.S. spent some time with B.C.M., a couple of times a month. In March 2015 N.S. was evicted, became homeless and was living in her car. She did not have any family members that would help her with childcare. So she asked B.C.M. if the child could come live with him. B.C.M. agreed and the child came to live with him starting in March, 2015. At the time, Child Protective Services (CPS) was investigating N.S. for possible neglect, but because N.S. turned M.S. over to B.C.M., CPS did not file neglect proceedings against her.

By oral agreement of B.C.M. and N.S., the child lived with B.C.M. and would visit her mother on the weekends and on N.S.'s days off from work. In June 2015, N.S. was hospitalized for approximately a week for mental health issues because she was suicidal. The child lived with B.C.M. continuously from March 2015 until the recent temporary order was made by this Court, transferring the child's primary placement to the mother. That temporary modification of custody was ordered due to B.C.M.'s recent arrest for DWI, allegedly with M.S. in the car. The Court takes judicial notice of said Order dated January 8, 2018.

During the period from March 2015 to January 8, 2018, B.C.M. and his girlfriend cared for M.S. and provided for her needs. He watched M.S.'s first steps and witnessed her first words. He helped her learn how to count to ten, taught her the colors, and helped her with her speech. He enrolled her in school in September 2017.

M.S. has a relationship with B.C.M.'s brothers and his mother, with B.C.M. referring to B.C.M.'s mother as Grandma, and each of his brothers as Uncle when he talks to M.S. about each of them. B.C.M. also has another child that is one year old, that he refers to as J. or baby brother when talking to M.S.

B.C.M. celebrates holidays with M.S., sharing M.S.'s birthdays with N.S., each having a half day with M.S. He gets M.S. gifts. B.C.M. colors with M.S., watches cartoons with her and plays with her toys with her. B.C.M. considers M.S. to be his child. He has been her primary emotional and financial support. He and M.S. took a trip to Virginia once to see B.C.M.'s grandmother. They went to the beach while they were there.

M.S. calls B.C.M. "Daddy" and she knows no other father. N.S. never dissuaded M.S. from thinking B.C.M. was her father until the second set of DNA tests were completed in the summer of 2017 regarding petitioner T.C. N.S. then told M.S. the results of the DNA tests.

B.C.M. never paid child support to N.S. when M.S. resided with her mother before March, 2015. B.C.M. has not paid child support or offered financial help to N.S. since M.S. started living with N.S. on January 8, 2018. B.C.M. is not currently employed. He has a stable place to live with a friend, "S" in a three bedroom apartment.

On July 19, 2016, after B.C.M., N.S. and M.S. had submitted to DNA testing, and the parties learned that B.C.M. was not the natural father, N.S. and B.C.M. nevertheless consented to an Order of Filiation before the Support Magistrate in open court adjudging and declaring that B.C.M. is the father of M. B.C.M. and N.S. also used the services of the Center for Dispute Settlement in late July or early August 2016 to draft a parenting agreement, providing for joint custody, and primary placement of the child with B.C.M. However, the Court takes judicial [*3]notice of an Order dated August 16, 2016, vacating the Order of Filiation by the Support Magistrate.

T.C. filed the paternity petition in this matter after he learned the results of the DNA tests because he now knows he is the biological father and wants the Court to determine him to be M.S.'s father. He has two other children, ages three and four, whom he supports and visits on his days off. He had a "one night stand" with N.S. approximately nine months before M.S. was born. He had received word from N.S. through a text message or Facebook message when she discovered she was pregnant, and told him he may be the father. He told her he'd take a DNA test, but did not hear from her again until the filings herein. N.S. then reached out to a friend of T.C.'s, who contacted T.C. T.C. then messaged N.S. He came to court and consented to DNA testing. He received the results in the summer 2017 that there was 99.9% probability he was the father. He met M.S. once after the paternity test, but did not arrange other meetings because he does not want to "mess her up" if the Court does not declare him the father. If the Court ruled in his favor he would establish a meaningful relationship with her and pay support.

CONCLUSIONS OF LAW

The Court considers the following factors:

• The nature and extent of the existing parent-child relationship. The father daughter relationship between B.C.M. and M.S. is strong. B.C.M. is the only father she has known since her birth until summer 2017 when respondent told M.S. that B.C.M. is not her father. M.S. considers B.C.M. to be her father and B.C.M. considers M.S. to be his daughter. The Court notes that even after learning from the DNA tests in the summer of 2016 that he is not M.S.'s biological father, B.C.M. sought to be named her father by the Support Magistrate, and consented with the respondent to the determination of paternity by the Support Magistrate, which was vacated. M.S. lived with B.C.M. from age two until age five. The respondent permitted B.C.M. to be the child's primary care giver and allowed M.S. to develop a close and loving bond with B.C.M. During that time N.S. did not discourage B.C.M.'s developing parental relationship with M.S. Significantly N.S. was aware of M.S.'s perception and understanding that B.C.M. was her father and N.S. knew that M.S. relied on this belief that B.C.M. was her father.• The relationship between the biological father and the child. T.C. does not have any meaningful bond with M.S. He has met her only once. Even though he was told by N.S. before M.S.'s birth that N.S. was pregnant, and the child might be his, he did nothing to find out about the child or find out if it was his (Dustin G. v Melissa I., 69 AD3d 1019, 1020 [3d Dept 2010]).Imposition of an estoppel in these circumstances is based upon the assumption that maintaining the child's relationship with the person who has assumed the role of father towards the child is more significant than the child's right to know the identity of his or her biological father (citations omitted). It is also based upon the assumption that a child would be psychologically harmed or traumatized by the disruption of the relationship that the child has with the man believed by the child to be his or her father (Purificati v. Paricos, 154 AD2d 360, 362. Richard M. v Alejandra H., 39 Misc 3d 1201(A) [Fam Ct 2013], affd sub nom. Richard A.M. Jr. v Alejandra H., 123 AD3d 1129 [2d Dept 2014]).

In considering an equitable estoppel claim in a paternity case, the Court does not consider [*4]the equities between or among the involved adults. Instead, "the case turns exclusively on the best interests of the child" (Shondel J v Mark D., 7 NY3d 320, 330 [2006]). See also In the Matter of Richard "W" v. Roberta "Y" (240 AD2d 812 [3d Dept 1997]; lv. den. 90 NY2d 808).

The Court is in agreement with the analysis by AFC Baker that "it is the child's reliance upon a representation of paternity that is to be considered", citing Dustin G. v. Melissa I. (69 AD3d 1019, 1020 [3rd Dept 2010]). Here, all the parties, N.S., by her actions throughout most of the child's life, T.C. by his choice to remain absent after he found out he was the father, and B.C.M., by his active participation in every aspect of M.S.'s life even when he found out he was not her biological father, have represented to M.S. that B.C.M. was her father. Therefore, equitable estoppel is the appropriate remedy in these circumstances.

Having listened to all the testimony, and having observed the demeanor and responses of the various witnesses on the witness stand, this Court concludes that it is in the best interests of this child to invoke the doctrine of equitable estoppel. Disrupting the close and established relationship between B.C.M. and M.S. would be detrimental to the child's best interests (Joyce S. v Kevin M., 132 AD3d 1419, 1420 [4th Dept 2015]; Shondel J v Mark D., 7 NY3d 320 [2006]). The paternity petition of T.C. is therefore dismissed and T.C. is precluded from asserting paternity of the child M.S.

Furthermore, the Court orders that the issues of child support, child care and medical insurance shall be referred to the Support Magistrate upon an application of the current or future custodian of M.S.

AFC, Baker shall submit a proposed Filiation Order naming B.C.M. as the father of M.S. and an Order dismissing the paternity petition and custody petition of T.C. in accordance with this Memorandum-Decision, within twenty days of the date of this Memorandum-Decision.

The hearing on the remaining petitions is scheduled for April 13, 2018 at 9:30 AM. That hearing will address the following petitions:

• B.C.M.'s custody petition filed May 2, 2016, V-00183-16• N.S. custody petition filed January 8, 2018, V-00183-16/18A

This constitutes the Decision of the Court.

Dated: February 15, 2018

Jason L. Cook

Family Court Judge

Yates County Footnotes

Footnote 1:The Court notes that the law requires that no DNA test be ordered when the Court has made a written finding that it is not in the best interests of the child on the basis of equitable estoppel for a DNA test to be ordered. FCA §534(a). Here, however, no party had made an equitable estoppel claim until after the DNA test regarding T.C. was ordered by the Court.