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 APPELLANT, WHICHEVER IS EARLIEST.DECISION AND ORDER AFTER HEARING In this case, two men claim to be the father of the child. One of them, the respondent, R.J., signed an acknowledgement of paternity in 2011 and obtained custody of the child in 2016 after the mother became ill. The other man, the petitioner C.B., filed for paternity and custody in June of 2018, shortly after the death of the child’s mother. In response to C.B.’s paternity petition, R.J., as well as the attorney for the child, asserted that C.B. should be equitably estopped from claiming paternity. A hearing was held at which both C.B. and R.J. testified. In addition, the child’s maternal grandmother testified on behalf of C.B. For the reasons outlined below, the court finds that C.B. is equitably estopped from claiming paternity as it is in the best interests of the child for legal paternity to remain with R.J..The court finds that both parties testified credibly. It appears that the mother of the child herself was not sure who the father was. It was clear to the court that both men sincerely believe they are the father of the child. However, although C.B. may have been a presence in the child’s life early on, he left New York in 2010, when the child was only two years old. According to C.B. and the maternal grandmother, C.B. spoke on the phone with the child when he was no longer living in New York. However, C.B. admitted that he had had no physical contact with the child during the last three years. C.B. knew he was not on the birth certificate and did not seek an order of filiation until he filed this case in June 2018, after the mother’s death. This was despite the fact that C.B. was aware of the fact that the child had been in the care of R.J. since 2016.In contrast, R.J., who also believed he was the father, had an ongoing relationship with the child for the child’s entire life, despite conflict with the child’s mother. He signed an acknowledgement of paternity in 2011when the child was three years old. R.J.’s mother took care of the child for an extended period of time, and R.J. often helped out taking the child to and from school. In November 2016, the mother moved to Massachusetts and took the child with her. Shortly thereafter, the child was placed in foster care due to the mother’s illness. R.J. immediately went to Massachusetts and the child was placed in his care. The child has lived with R.J. since that time and in May 2017, an order of custody of the child was granted to R.J. in New York.As the Court of Appeals noted in the analogous context of a support proceeding, “[t]he 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 the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness.” Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326 (2006). Equitable estoppel may be asserted in the best interests of the child in order to prevent a DNA marker test from being conducted. F.C.A. Sections 418 (a), 532 (a); Matter of Shondel J. v. Mark D., 7 N.Y.3d at 329. The key question before the court is the best interests of the child involved:It is true that a child in a support proceeding has an interest in finding out the identity of her biological father. But in many instances a child also has an interest — no less powerful — in maintaining her relationship with the man who led her to believe that he is her **7 father. The 1990 amendment to Family Court Act §418 (a) appropriately balances these interests in accordance with the primary purpose of the Family Court Act — to protect and promote the best interests of children.Shondel J. v. Mark D., 7 N.Y.3d at 329.After weighing all of the evidence and meeting with the child, the Court finds that it is in the best interests of the child that C.B. be equitably estopped from asserting paternity. The father of the child is the man who has been there for the child, raised him, sent him to school and has taken care of him. R.J. is the one who asserted his paternity when the child was three years old, took him out of foster care when the mother became ill, and filed for custody in 2016. He assumed full parenting responsibility, providing a stable home, taking care of the child’s medical needs and providing him with a warm and loving environment. He has been there for the majority of the child’s life and acted as a father for this child. This is the person the child has a filial relationship with and whom he clearly sees as his father.In contrast, C.B. did not file for paternity until almost 10 years after the child was born, well after R.J. had been acting in a parental capacity for the child for a number of years. C.B. argues that the child refers to both men as “Dad,” and the Court acknowledges that the evidence indicates that the mother treated both men as if they were the biological father of the child. However, the evidence makes clear that it was R.J. who affirmatively asserted his parental rights and established a close and filial relationship with the child.Moreover, R.J. has other children whom the subject child sees as his siblings. After everything the child has been through, the Court does not want to separate him from his sibling or from the father figure who has always been present in his life and who has been caring for him exclusively for the past two and one-half years.The court finds that the respondent R.J. has shown that the petitioner C.B. is equitably estopped from receiving a DNA test. It is in the best interest of the child for him to remain in the care of the man who has always acted as a father for him. See Ellis v. Griffin, 308 A.D.2d 449 (2d Dept. 2003). As a result, C.B.’s petitions are dismissed.This child is extremely fortunate to have so many people who care about him and want to be part of his life. The court would encourage both parties, to the extent possible, to allow the child to continue to foster those positive relationships.Notify parties and counsel.
