NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY RESULT IN INCARCERATION FOR CRIMINAL NON-SUPPORT OR CONTEMPT. YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSE, STATEISSUED PROFESSIONAL TRADE LICENSES AND PERMITS AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS.DECISION AND ORDERAfter Filing of Objection Petitioner Commissioner of Social Services (“CSS”) objects to the orders issued by Support Magistrate Linda H. Safron on March 21, 2018, whereby she granted Respondent father’s (“Respondent”) petition to vacate the Acknowledgment of Paternity and dismissed, with prejudice, the petition for support that had been filed by CSS. CSS does not challenge the trial court’s factual findings, but submits that the trial court incorrectly applied the law by not giving sufficient consideration to the legal doctrine of ratification. No rebuttal was filed. After a review of the file, this court denies the objection for the reasons set forth below: On October 19, 2017, CSS filed a Petition for Support, seeking an order directing Respondent father pay child support on the basis that he had established paternity of the subject child when he executed an Acknowledgment of Paternity (“AOP”) on December 18, 2016, when the child was one day old.On the first court date on November 16, 2017, CSS, Petitioner mother (“Petitioner”) and Respondent appeared. Petitioner mother averred that she had executed an AOP naming Respondent as the child’s father, but had subsequently discovered that he was not the child’s biological father. Respondent also averred that he had signed the AOP, but had found out, about two weeks after the child was born, that he was not the biological father. The Support Magistrate suggested that the parties file a petition to vacate the AOP, and adjourned the case to provide them an opportunity to do so. The Magistrate also advised Petitioner that she may want to inform the welfare office as to the identity of the child’s biological father so that they could consider filing a petition seeking child support from such individual.Later that same day, Respondent filed a “Petition to Vacate Acknowledgment of Paternity,” in which he requested that the court issue an order determining that he was not the legal father of the subject child.On the next court date on January 17, 2018, the Support Magistrate advised both parties that they each had the right to hire a private attorney, and both parties waived such right. The Magistrate reminded Petitioner that her interests and those of CSS may be different, but Petitioner nevertheless affirmed her waiver.Respondent testified that at the time he signed the AOP, the day after the child was born, he had believed himself to be the father, but that subsequently, about two to three days after the birth, Petitioner had advised him that he may not be the biological father. About two to three weeks later, the parties had taken a private (out of court) DNA test, and they received the results about three weeks later, which revealed that Respondent was not the child’s father.Upon cross-examination by CSS, Respondent admitted that he had not filed to vacate the AOP until November 16, 2017, which was 11 months after the date he had executed the AOP, and admitted that there was no particular reason for the delay. Respondent further testified that he had never lived with Petitioner or with the child and had never attended the child’s medical appointments, but that he had given the child gifts, most recently this past Christmas, and that he had also, on occasion, given the child money or bought her clothes or food.Petitioner testified that she had witnessed Respondent signing the AOP, and that she had not told him until after he signed the AOP that he may not be the father. She also admitted that she never filed to vacate the AOP. Respondent had visited Petitioner’s home to see the child and had, on occasion, given her money or gifts for the child. However, he had never taken the child outside the home by himself or attended any of the child’s medical appointments, and she averred that Respondent had given the gifts to Petitioner simply because the parties were friends.When asked by the trial court, Petitioner testified that she had no objection to the court ordering a DNA test. She also testified that the child had a relationship with her biological father, who was named “L.B.,” and that she and “L.B.” also had a two-year old child together, for whom “L.B.” had been paying support.CSS objected to the ordering of a DNA test on the grounds that Respondent ratified any fraud or mistake by failing to have the AOP vacated, and through his pattern of conduct in providing gifts and money for the child.The trial court found that there was a material mistake of fact or fraud in the signing of the AOP, as evidenced by the mother revealing to Respondent, within days after Respondent signed the AOP, that he may not be the father of the child. Over the objection of CSS, the trial court ordered a DNA test. The trial court further advised CSS to consider filing a case to collect child support from L.B., and the case was adjourned to receive the DNA test results.On the next and final court date on March 31, 2018, Respondent and CSS were present, but Petitioner was not. The trial court noted that there was a snowstorm, and that the case would be adjourned to allow Petitioner to appear, but CSS indicated that an adjournment was not necessary, as Petitioner had completed her testimony. The trial court noted that DNA test results showed that Respondent was not the father of the child, and found that Respondent had sustained his burden of proof by showing material mistake of fact and/or duress in the execution of the AOP. CSS again objected to the DNA test having been ordered, on the grounds of ratification. The trial court noted the objection, but vacated the AOP and dismissed, with prejudice, CSS’s petition for support, and the case concluded.Here, CSS’s sole argument is based on the legal doctrine of ratification, which, CSS argues, provides that a party may not avoid an agreement on grounds of fraud if, after acquiring knowledge of the fraud, he affirms the contract by accepting a benefit under it. CSS argues that after Respondent discovered he was not the biological father of the child, his course of conduct in failing to take action to vacate the AOP in a timely manner, and in providing money and gifts for the child, amounted to a ratification of the AOP.CSS argues that the doctrine of ratification applies when a party to a contract acquires knowledge of a fraud that would be the grounds to vacate such contract, but such party nevertheless affirms the contract by “accepting a benefit” under it. Here, the records is devoid of any evidence to support CSS’s contention that Respondent received any “benefit” from his course of conduct. Moreover, the record is devoid of any testimony or evidence that Respondent received any financial, material, or emotional benefit from failing to file to vacate the AOP, or from providing money and gifts for the child. This court finds that the legal doctrine of ratification to be inapplicable in this case, and CSS’s argument to be without merit.Accordingly, IT IS HEREBY ORDERED THAT: Petitioner’s objection is denied in its entirety.This constitutes the decision and order of this Court.Dated: New York, New YorkApril 18, 2018ENTER:PURSUANT TO §1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE (35) DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF COURT, OR THIRTY-FIVE (35) DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
