Papers NumberedSummons, Petitions, Affidavit & Exhibits Annexed 1Notice of Motion, Affirmation & Exhibits Annexed 2Court Proceedings Transcripts 3Affirmation in Opposition 4 Upon the foregoing papers and for the following reasons, the Motion by Respondent Jon R. L. (hereinafter “Father”), for the issuance of an Order directing a Genetic Marker or DNA Test pursuant to Family Court Act Article 5, is denied.The following facts are undisputed. Assignor Kyiesha H. (hereinafter “Mother”) and Father met and began dating in 2010. After Mother notified him about her pregnancy in 2011, the two began living together at Mother’s uncle’s basement apartment in Queens, New York. Father was alerted when Mother went into labor and was present in the delivery room for the birth of their Child. Father acknowledged that he assisted in choosing the Child’s name.Father returned to the hospital on July 5, 2011, the day that Mother and the Child were set to be released and to go home. According to Father, upon his arrival, the Child’s maternal grandmother informed him that in order for the Child to come home and not be “placed in custody,” Father would need to sign an Acknowledgment of Paternity form. Father complied and signed the Acknowledgment with Mother, and they and the Child left the hospital to return home. In relevant part, the Acknowledgment of Paternity reads:I UNDERSTAND THAT SIGNING THIS ACKNOWLEDGMENT WILL ESTABLISH THE PATERNITY OF THE CHILD AND HAVE THE SAME FORCE AND EFFECT AS AN ORDER OF FILIATION ENTERED AFTER A COURT HEARING INCLUDING AN OBLIGATION TO PROVIDE SUPPORT FOR THE CHILD, EXCEPT THAT ONLY IF THIS ACKNOWLEDGEMENT IS FILED WITH THE REGISTRAR WHERE THE BIRTH CERTIFICATE IS FILED WILL THE ACKNOWLEDGMENT HAVE SUCH FORCE AND EFFECT WITH RESPECT TO INHERITANCE RIGHTS. I HAVE RECEIVED WRITTEN AND ORAL NOTICE OF MY LEGAL RIGHTS AND THE CONSEQUENCES OF SIGNING THE ACKNOWLEDGMENT OF PATERNITY, AND I UNDERSTAND WHAT THE NOTICE STATES. A COPY OF THE WRITTEN NOTICE HAS BEEN PROVIDED TO ME. I CERTIFY THAT THE ABOVE INFORMATION IS TRUE.The family started living together in their basement apartment for almost two years. Father testified that he contributed to the household and provided for the Child with diapers and other basic needs. However, in 2012, Father allegedly found certain information on Mother’s iPad that led him to believe that she was not being truthful to him. Soon after coming to this conclusion, Father moved out of the basement apartment and began living with his friends.The present action was commenced by Assignee New York City Commissioner of Social Services of the City of New York (hereinafter “DSS”) on behalf of Mother for the reimbursement of public assistance payments received by her. By Petition for Support dated March 27, 2017, DSS commenced the instant proceeding against Father seeking an order of support from him based upon the Acknowledgment of Paternity of the Child in New York County Family Court. On April 24, 2017, after joining issue, the New York County Family Court issued an Order transferring the proceedings to Kings County Family Court. The parties appeared before Kings County Family Court Judge Sharon A. Bourne-Clarke on June 7, 2017, and eventually a motion schedule was set based on Father’s stated intention to make a dispositive motion.On September 6, 2017, more than six years after executing the Acknowledgment, Father filed the instant Notice of Motion for an order requiring DNA testing of the Child to learn his actual paternity or, in the alternative, seeking a hearing to establish that the Acknowledgment was fraudulent, and the product of mistake and duress exerted by Mother. In a Supporting Affidavit, Father acknowledges that, while he had a sexual relationship with Mother nine months before the birth of their Child, he has reason to believe that he was not Mother’s only sexual partner or possible father of the child. Father also stated that he was under pressure and duress to sign the Acknowledgment of Paternity by Mother’s family and was unaware of the legal ramifications of signing the document.Although there was service of process and Mother appeared in both Family Courts, at no point in the proceedings has Mother or the Child presented themselves before the undersigned. The Attorney for the Child appeared before the court on several occasions, yet despite this Court’s Orders for Mother to appear and produce the Child, as of July 24, 2018, the Attorney for the Child had not met with Mother or the Child. As a result, Mother was defaulted by this Court, and an inquest was noticed and proceeded. On July 24, 2018, the inquest commenced with Father as the sole witness. Father was directly examined by his attorney and cross-examined by attorneys for DSS and the Child. At the conclusion of the hearing, after hearing additional oral arguments, the Undersigned denied the Father’s Motion for DNA testing on the record and reserved for a written decision.Pursuant to Family Court Act §516-a(b)(ii), a challenge to an acknowledgment of paternity “after the expiration of sixty days of [its] execution” must be based upon “fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment” (Matter of Derrick H. v. Martha J., 82 AD3d 1236; Matter of Demetrius H. v. Mikhaila C.M., 35 AD3d 1215, 1216 [2nd Dept. 2006]; Matter of Ng v. Calderon, 6 AD3d 255 [1st Dept. 2004]). To establish fraud, a petitioner must show that he or she “justifiably relied on the respondent’s fraudulent statements or representations at the time the acknowledgment of paternity was signed” (Matter of Joshua AA. v. Jessica BB., 132 AD3d 1107, 1108 [3rd Dept. 2015]; see Matter of Demetrius H. v. Mikhaila C.M., supra at 1216; see generally Gaidon v. Guardian Life Ins. Co., 94 NY2d 330, 348 [1999] ["Fraud has generally been defined as behavior involving intentional false representations and other connotations of scienter such as willfulness, knowledge, design and bad faith"]). To succeed in a fraud claim, the movant “had to show that he was not on notice, actual or constructive, of the wife’s fraud in misleading him as to his nonpaternity” (Matter of Richard B. v. Sandra B., 209 AD2d 139, 144 [1st Dept. 1995]).Similarly, in order to establish a “material mistake of fact, a party must demonstrate that such mistake ‘was truly material-i.e., substantial and fundamental to the nature of the [acknowledgment]-so as to entitle a party to void that document’” (Matter of Wimberly v. Diabo, 42 AD3d 599 [3rd Dept. 2007]). Where an individual challenging an acknowledgment of paternity after 60 days “fails to meet the burden of proof on the issue of fraud, duress, or material mistake of fact, the court need not order a G[enetic] M[arker] T[est] to determine the child’s paternity” or conduct an equitable estoppel hearing (Matter of Westchester County Dept. of Social Servs. v. Robert W.R., 25 AD3d 62, 70; see Matter of Demetrius H., supra; Matter of Darlene L.-B. v. Claudio B., 27 AD3d at 565).When applying these legal principles to the matter at bar, Father’s Motion fails. There is no dispute that Father failed to file a Petition with Family Court to vacate his Acknowledgment of Paternity within 60 days of signing the Acknowledgment or the date of an administrative or judicial proceeding relating to the Child. Indeed, prior the commencement of this action, Father had made no attempt to vacate the Acknowledgment or deny paternity of the Child for over six years after its execution. Therefore, in order for Father to challenge the Acknowledgment, he carries the burden of proving that it was signed under fraud, duress, or due to a material mistake of fact (see Matter of Derrick H. v. Martha J., 82 AD3d at 1236; Matter of Demetrius H. v. Mikhaila C.M., 35 AD3d at 1216).At trial, Father stated that he signed the Acknowledgment of Paternity form without reading it or knowing its consequences. Father, on cross-examination, confirmed that he has the ability to read and affirmed that it is indeed his signature found on the Acknowledgment. In explaining to the Court why he signed the form without reading it, Father said that he was told by the Child’s maternal grandmother that without his signature on the form, the Child would not be released into his or Mother’s custody, but instead that of DSS. Father argues that his signature was given under duress for that reason. However, upon cross examination, the Father testified that he had never been the subject of any ACS investigations. Neither has there been any evidence submitted to the Court to suggest that there was any involvement or investigation by ACS of Mother or Father, nor any reason provided for their purported involvement.Father’s additional argument that he signed the Acknowledgement of Paternity due to a material mistake of fact is similarly meritless. At trial, Father testified that as early as 2012, he discovered some information on Mother’s iPad that led him to believe that she was having sexual relations with another man while they were together. Nonetheless, Father provided no substantial information as to whether these sexual relations occurred during the time the period in which Mother became pregnant with the child. Nor did the Father provide any proof of the information he claims to have discovered on Mother’s iPad. Father’s utter lack of evidence to substantiate claims of fraud, duress, or material mistake of fact, coupled with his role in the Child’s life as his only father figure up until January of 2017, further undermines his claim.Even if this Court were to find that Father somewhat met his burden of proof to vacate the Acknowledgment, equitable estoppel would prevent this Court from reversing the legitimization of the Child because, inter alia, Father has held himself out as the only father figure of the Child for over six years. Father candidly testified that, after ending his relationship with Mother, he continued to visit with the Child, despite there being no court order requiring him to do so. The Child identifies Father as his father, and he has introduced the Child to his sister and family as his son. Father has celebrated holidays and birthdays with the Child as recently as last year, and provided the Child with gifts on those occasions. In fact, Father candidly testified that he has made requests to Mother to visit the Child and has also provided food to Mother and the Child when they were recently living in a Bronx shelter; Father currently resides in New Jersey. These circumstances would dictate equity to estop Father from denying his paternity of the Child.In accordance with the foregoing, this Court denies Father’s Motion to Vacate the Acknowledgment of Paternity. The matter is respectfully referred to the presiding Support Magistrate to establish the appropriate guidelines Order of Support against Father. The foregoing constitutes the Decision and Order of this Court.Dated: July 30, 2018Brooklyn, New YorkNOTICE: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.Check applicable box:Order mailed on (specify date[s] and to whom mailed):Order received in court on (specify date[s] and to whom mailed):
