On XXXXX, respondent Y.P. gave birth to the subject child J.E. On XXXXX, a birth certificate for J.E. was filed, listing S.D.E. as the father of the child. S.E. had signed an acknowledgment of paternity on August 10, 2015, and that acknowledgment was filed with the New York City Department of Health and Mental Hygiene on August 17, 2015. On March 22, 2019, C.R. filed a petition asking that this Court declare that he is the father of J.E. In his petition, C.R. acknowledged that S.E. had been declared the legal father of J.E. An extensive hearing was held on September 3, 2019, December 3, 2019, December 19, 2019, January 16, 2020, and February 26, 2020 to determine whether there was a basis to vacate S.E.’s acknowledgment of paternity prior to going to a best interest inquiry. During the hearing, the Court heard testimony from the mother/respondent, Ms. Y.P. (hereinafter Ms. P), the legal father/interested party, Mr. S.E. (hereinafter Mr. E), and the putative father/petitioner, Mr. C.R. (hereinafter Mr. R). All counsel, including counsel for Mr. E, were permitted to present a case and question witnesses and offer evidence. All three principles testified at the hearing. The Court finds their testimony partially credible, as each witness provides different accounts of the nature of the relationship between Ms. P and Mr. R. However, all three witnesses agree on a general set of facts and the Court makes the following findings based on their testimony. Testimony of Respondent Y.P. Ms. P testified that she gave birth to the subject child, J.D.E., on XXXXX. Without objection, the child’s birth certificate was admitted into evidence, listing S.D.E. as the father. In the ten months preceding his birth, during the conception period, she testified she was in a relationship with Mr. E. Ms. P stated she was familiar with the petitioner, Mr. R, as they had a romantic and sexual relationship in the past, which ended around May 2014. However, Ms. P stated there was an encounter between the two on November 9, 2014. Despite remembering the date, Ms. P stated she did not remember having sex with Mr. R, but was informed by him that they did have sex that night. She testified that she learned she was pregnant in December 2014. Mr. E was present when she took the pregnancy test and she informed Mr. R in January of 2015 about her pregnancy. Ms. P testified that there was a text conversation between Mr. R and Mr. E, prior to the child’s birth, where Mr. R informed Mr. E that either one of them could be the father. Mr. E learned that Ms. P and Mr. R had sex. Ms. P testified that she and Mr. E agreed that they would take a DNA test when the child was born to confirm who the father of the child was. Ms. P indicated that Mr. E was present at the birth and that the two still had the plan to have a DNA test. When it came to signing the acknowledgment of paternity, Ms. P testified both that she “told S.E. if he didn’t feel like it was his son for him not to sign it,” (see 09/03/19 transcript at p. 20 and 37), and that she believed Mr. E was the father of the child at the time of the birth (see 09/03/19 transcript at p. 32). Mr. E signed the acknowledgment of paternity. Ms. P testified that she and Mr. E did an at-home DNA test, where they mailed in swabs of the child’s DNA and Mr. E’s DNA, after the acknowledgment of paternity had been signed. The results took “about two months” to return, but when they came back, she told Mr. E that the results indicated he wasn’t the father. She also testified that she had been living with Mr. E at the time. On September 2, 2015, Ms. P filed both a petition to vacate the acknowledgment of paternity (Dkt. P-23195-15) and a petition for paternity against Mr. R (Dkt. P-23197-15). This Court took judicial notice of these petitions. Both petitions were ultimately dismissed because the petitioner failed to appear. Ms. P testified that she and Mr. E stopped going to Court because Mr. R indicated he would not be going to court. The acknowledgment of paternity is attached to Docket P-23195-15 and filed in UCMS. It is signed by S.D.E., who acknowledges that he is the biological father of J.D.E., and by Y.P., who consented to the acknowledgment. It is dated August 10, 2015 and witnessed by two people at the hospital. This acknowledgment was filed with the New York City Department of Health and Mental Hygiene on August 17, 2015. Testimony of Interested Party S.E. Mr. E testified that he was in a relationship with Ms. P during the time that J.E. would have been conceived and when he was born. He testified that Ms. P informed him that she had one sexual encounter with someone else around the time J.E. was conceived. Mr. E testified that their relationship continued. He corroborated Ms. P’s testimony that there was agreement with Ms. P to do a DNA test once J.E. was born. Mr. E testified that he believed that J.E. was his son at the time of the birth, based on what Ms. P told him and the fact that they were actively trying to conceive a child together. He acknowledged that there was an encounter between Mr. R and Ms. P, but “we were trying and trying and trying, compared to a person one time, then I would say, okay, yes, I am the father” (12/03/19 transcript at p. 21). However, he still agreed to do the DNA test “because there was that one time that she spoke about, so there’s that one percent I did it for peace of mind.” (12/03/19 transcript at p. 23). He “signed the affirmation of paternity” and he “wasn’t forced to sign” it. (12/03/19 transcript at p. 18-19). Mr. E testified that he went to court with Ms. P for the acknowledgement of paternity to be vacated but stopped going when Mr. R refused to appear in court. Testimony of Petitioner C.R. Mr. R testified that he was in a sexual relationship with Ms. P from the summer of 2014 through November 2018 and that they resided together on and off from June of 2014 through November 2017 or 2018 (12/19/19 transcript at p. 8-9). At the time they met, Mr. R was aware that Mr. E was Ms. P’s boyfriend. Mr. R testified that when he found out Ms. P was pregnant, he immediately started asking questions saying, “I’m sexually active with you you have a boyfriend and I’m still sexually active with you and [you're] pregnant and basically whose is it?” (12/19/19 transcript at p. 10-11). Mr. R further testified that he never directly spoke to Mr. E about J.E. paternity, but there was an “exchange of text message where I [Mr. R] let him [Mr. E] know that I was still sexual active with her…we messaged back and forth about that then the baby is possibly mines. This is before the birth of J.E.” (12/19/19 transcript at p. 24). Mr. R testified that he was aware that there would be a DNA test and that he would step back to allow Mr. E to parent. However, after the DNA results, Ms. P started referring to him as the child’s father and stated that she was going to court to get the birth certificate changed. Mr. R did not go to court because he “didn’t think he was needed, but I was told by her I was needed there that’s why she couldn’t proceed with removing his name off the birth certificate because I didn’t believe it. I have to — I didn’t really have to be there for him to sign the birth certificate so I didn’t think I had to be there to get his name removed” (12/19/19 transcript at p. 20). Standing to Challenge the Existing Acknowledgment of Paternity There is no petition before this Court to vacate the acknowledgment of paternity. Although Mr. R has standing to file a petition for paternity pursuant to Family Court Act section 522, under which “proceedings to establish the paternity of the child and to compel support under this article may be commenced by a person alleging to be the father,” the acknowledgment of paternity signed by Mr. E at the time of the child’s birth must still be addressed. “An order of filiation should not serve as an insuperable bar to a claim of paternity by one who is a stranger to the proceeding in which the order of filiation was entered.” Tyrone G. v. Fifi N., 189 AD2d 8, 14 (1st Dept. 1993). The same Court noted that its holding was based on case law which held that “the presumption of legitimacy of a child born within a marriage does not limit the right of a child’s biological father to bring a paternity action.” Id. citing Matter of Findlay, 253 NY 1, 7-8 (1930). In Matter of James T.H. v. Danielle M. K-R., 48 AD3d 683, 684 (2nd Dept. 2008), the Court held that “a prior acknowledgment of paternity made in accordance with Family Court Act 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment.” The existing acknowledgment of paternity can be vacated only by a finding that it was signed as a result of fraud, duress, or material mistake of fact. This Court must first determine if there is a ground to remove the legal status of Mr. E as the father before proceeding with the paternity petition. Failure to do so before considering the paternity petition could result in the child having two fathers or being fatherless. As held by the Court in Donald “FF” v. Jennifer “FF”, 273 AD2d 733, 734 (3rd Dept. 2000), “Family Court Act article 5 does not authorize any person to originate a proceeding in Family Court to illegitimize a child.” Since no petition to vacate the acknowledgment of paternity by either of the signatories was filed, this Court conducted a full hearing to determine if the acknowledgment of paternity should be vacated based upon the filing of Mr. R’s petition for paternity. To do otherwise would ignore the statutory intent of Family Court Act sections 516-a(a) and (b)(iv). This Court afforded Mr. R, Mr. E, and Ms. P a full opportunity to participate in an extensive hearing, present witnesses, and be represented by counsel. All had a voice on the validity of the acknowledgment of paternity. The procedure this Court used is distinguishable from that used in Matter of Thomas T. (Luba R.), 121 AD3d 800 (2nd Dept. 2014) where “the Court dismissed the paternity petition without a hearing on the basis that the petitioner could not establish fraud as required by Family Court Act section 516 to vacate an acknowledgment of paternity.” That lower court decision was overturned. Family Court Act Section 516-a(a) states: “An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act.” In the case before this Court, it is clear that the acknowledgment of paternity which was signed by Mr. E on August 17, 2015 is still in effect. Mr. R’s petition cannot be addressed until a determination is made about the validity of the acknowledgment of paternity. The Court is bound by the clear language of 516-a. It therefore first held a hearing to determine if there was a basis to vacate the acknowledgment of paternity. Legal Basis to Vacate the Acknowledgment of Paternity Pursuant to Family Court Act 516-a(b)(iv): After the expiration of the time limits set forth in paragraphs (i) and (ii) of this subdivision, any of the signatories to an acknowledgment of paternity may challenge the acknowledgment in court by alleging and proving fraud, duress, or material mistake of fact. If the petitioner proves to the court that the acknowledgment of paternity was signed under fraud, duress, or material mistake of fact, the court shall then order genetic marker tests or DNA tests for the determination of the child’s paternity. In Matter of Westchester County Dept. of Social Servs. v. Robert W.R., 25 AD3d 62, 70 (2nd Dept. 2005), the Court held that “Family Court Act section 516-a (b) requires the court to conduct a hearing to determine the issues of fraud, duress, or material mistake of fact before ordering” a genetic marker test. If the Court finds a basis to vacate the acknowledgment of paternity, the Court must then conduct a best interest hearing, where issues such as equitable estoppel can be raised. Id. at 71; Family Court Act section 516-a(b)(iv). If equitable estoppel is not raised and the Court finds it is in the best interest of the child, then the Court would order genetic marker testing and proceed accordingly. If fraud, duress, or material mistake of fact are not proven, then the analysis stops, and the acknowledgment of paternity remains in place. See also Matter of Andrew E. v. Angela N.S., 165 AD3d 658 (2nd Dept. 2018). To establish fraud, it must be shown that a party “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). Further, it is required that the party “was not on notice, actual or constructive” of the other party’s fraud, “misleading him as to his nonpaternity.” Richard B. v. Sandra B.B., 209 AD2d 139, 144-145 (1st Dept. 1995). Nor is fraud established merely because there are doubts about paternity at the time of the signing. (See Richard B., where the father signed the paperwork, despite “his admitted doubts about paternity and serious allegations in the complaint.”) The Court held that fraud was not established in that matter and that the father was on actual notice about the possibility that he was not the biological father. In Matter of Wimberly v. Diabo, 42 AD3d 599, 600 (3rd Dept. 2007), the Court held that to establish duress, there must be a showing that the petitioner “was forced to agree to (sign the acknowledgment) by means of a wrongful threat which precluded the exercise of his free will,” citing Matter of Podmore v. Our Lady of Victory Infant Home, 82 AD2d 48, 50 (4th Dept. 1981). “Suggestions, persuasion or mental or emotional stress are insufficient to constitute duress so as to invalidate a legal document.” Diabo at 600. See Matter of Jeannette GG. v. Lamont HH., 77 AD3d 1076 (3rd Dept. 2010), where the Court remitted the matter to the Family Court for a new hearing to allow petitioner to attempt to establish duress by introducing expert testimony on domestic violence and its impact on her ability to exercise free will in connection with the acknowledgement of paternity. In the instant matter, Mr. E specifically stated that he was not forced to sign the acknowledgement of paternity. To establish a material mistake of fact, a “court must determine whether a mistake of fact was truly material — i.e., substantial and fundamental to the nature of the contract — so as to entitle a party to void that document.” Matter of Wimberly v. Diabo, supra at 600, where the Court held that signing the acknowledgement of paternity was not material mistake of fact pursuant to facts described above. In Matter of Felton R. v. Gloria P., 63 AD3d 515 (1st Dept. 2009), the Court did not find material mistake of fact where the petitioner admitted he knew he was not the father when he signed the acknowledgement of paternity. However, in Matter of Derrick H. v. Martha J., 82 AD3d 1236 (2nd Dept. 2011), a case relied upon by Mr. R, the Court found a material mistake of fact where the petitioner executed the acknowledgement of paternity because the respondent represented that he was the child’s biological father, they were sexually active together, and already had one child together. The petitioner learned after signing the acknowledgement from other family members that the respondent had another sexual partner during the conception period. Similarly, in Matter of Oscar X.F. v. Ileana R.H., 107 AD3d 795 (2nd Dept. 2013), another case relied upon by Mr. R, the petitioner testified that at the time he signed the acknowledgement of paternity, he was not aware that the respondent had “another sexual relationship during the relevant time period,” and therefore the record established that the acknowledgement of paternity was signed due to a material misstatement of fact. The facts in these cases, however, are distinguished from those in the case before this Court. Mr. E’s testimony clearly shows that he was aware of Ms. P’s sexual encounter prior to signing the acknowledgment, but chose not to have this information factor into his decision when he voluntarily signed the acknowledgment. Rather, he rationalized that there was only a “one percent” chance of him not being the father. This cannot be viewed as a material misstatement of fact. Here, it is argued that the acknowledgment of paternity should be vacated based on material mistake of fact, in that Mr. E believed he was the father at the time that he signed the acknowledgement of paternity because Ms. P told him several times that he was the father of the child, held him out to be the father of the child prior to the DNA test, and argues that the two were in a sexual relationship at the time and actively trying to conceive a child. However, the record belies any grounds which would constitute material mistake of fact. Courts have declined to find material mistake of fact in cases where the signatory knew that the mother had another sexual partner during the relevant time period and signed the acknowledgment anyway. It is clear from the testimony that Mr. E knew at the time he signed the acknowledgement of paternity that he may not have been the father. All three witnesses testified that there were conversations that put Mr. E on actual notice that Ms. P had sexual relations with Mr. R around the time J.E. was conceived and there was an agreement that a DNA test would be taken after the child was born. Ms P testified that while she was pregnant, Mr. R texted Mr. E to inform him that there was a possibility that either one of them could be the father. Ms. P also testified that she told Mr. E that he did not have to sign the acknowledgment “if he didn’t feel” the child was his. Mr. R testified that he messaged Mr. E, prior to the child’s birth, informing him that that the baby could possibly be either of theirs. Moreover, Mr. E testified that during the time of Ms. P’s pregnancy, he wanted and agreed to have a DNA test because he learned from Ms P that she was sexually involved with another man during the relevant time period. However, Mr. E still voluntarily signed the acknowledgment of paternity, believing the odds were significantly low for Mr. R to be the father. With the knowledge that it could have been another man prior to signing the acknowledgement and still freely choosing to do so, there is no fraud, duress or material mistake of fact. See Matter of Miskiewicz v. Griffin, 41 AD3d 853 (2nd Dept. 2007); Jesus R.C. v. Karen J.O., 126 AD3d 445 (1st Dept. 2015); Matter of Andrew E. Angela N.S., supra. In 2015, the parties chose not to pursue the petitions filed by Ms. P to vacate the acknowledgment of paternity. At that time, pursuant to Family Court Act section 516-a (b)(i), the acknowledgement of paternity could have been vacated without the need to prove fraud, duress, or material mistake of fact. The Paternity Petition Now presented with Mr. R’s petition for paternity, the valid acknowledgment of paternity which has been in existence since August 2015 must be addressed. Sections 516-a and 522 of the Family Court Act are essentially in conflict with each other, since the ability to proceed with a paternity petition pursuant to 522 can contradict the strict grounds for vacating an acknowledgment of paternity pursuant to 516-a(b)(iv). As discussed above, case law states that “a prior acknowledgment of paternity made in accordance with Family Court Act section 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment.” Matter of James T.H., supra. See also Matter of Dwayne J.B. v. Santos H., 89 AD3d 838 (2nd Dept. 2011) where the Second Department held it was error for the lower court to summarily dismiss a case because there was already an acknowledgment of paternity and remitted the matter to the Family Court for “further proceedings on the petition” without any direction on how then to proceed. See also Matter of Thomas T, supra. However, there is little guidance as to what an “insuperable bar” actually means and how to address an already existing acknowledgment of paternity when a petition for paternity is filed beyond the 60 day statutory deadline set out in section 516-a. In Matter of Emily R. v. Emilio R., 53 Misc 3d 325 (Family Court, Bronx County 2016), the Family Court felt “comfortable” entering an order of filiation to the putative father and vacating an acknowledgment of paternity in a complicated matter where neither of the signatories filed a current petition to vacate the acknowledgment of paternity. However, the attorney for the child (who moved to vacate the acknowledgment), the mother, and putative father all agreed to the vacatur and the legal father failed to appear for the proceedings. Moreover, the Court held that statements made by the mother, putative father, and legal father in various court proceedings through the years supported a finding that there was a material mistake of fact when the acknowledgment of paternity was issued. However, in the matter before this Court, there are no articulable grounds to vacate the acknowledgment, a position addressed by the attorney for the child during summation. There is nothing in the record to support the argument that fraud, duress, or a material mistake of fact exists. Unlike the facts in Emily R., the mother and attorney for the child do not agree with vacating the acknowledgment, and the legal father was present and had the opportunity to be heard at an extensive hearing. This Court cannot ignore the strict statutory requirements in Family Court Act section 516-a(b)(iv) which are required to vacate an acknowledgment of paternity, and the binding and enforceable consequences of an acknowledgment of paternity as set out in Family Court Act section 516-a, Social Services Law section 111-k, and Public Health Law section 4135-b. To do otherwise would be tantamount to nullifying the law and diminishing the importance of an acknowledgment of paternity. Both Mr. E and Ms. P signed the acknowledgment of paternity before witnesses on August 10, 2015, declaring S.D.E. to be the biological father of J.D.E., the child carrying both Mr. E’s middle and surname. There has been no legal basis brought before this Court to vacate this binding legal document. It is unfortunate that the parties have taken what appears to be a seemingly cavalier approach to the legal status of the child’s father. Although a petition was filed by Ms. P in 2015 to vacate the acknowledgment of paternity, Mr. R, Mr. E, and Ms. P made no effort to pursue it, and the petition was dismissed. Mr. R testified that despite believing he was the child’s father, he did not go to the hospital at the time of birth and waited for DNA results because “the truth will set you free.” Mr. R’s failure to appear at the 2015 proceedings did not prompt Mr. E or Mr. P to move on any subsequent date to have the acknowledgment vacated. Although the witnesses testified to different interpretations about the relationships which Ms P had with Mr. R and Mr. E, the evidence clearly shows that prior to signing the acknowledgment of paternity, Mr. E had actual notice that another man may have been the father of the child. Furthermore, he specifically stated that he was not forced to sign the acknowledgment. Mr. E’s knowing that another man may be the father of the child, but still choosing to freely sign the acknowledgment, shows that the acknowledgment of paternity was not signed under duress, fraud, or material mistake of fact. See Matter of Miskiewicz v. Griffin, supra; Matter of Jesus R.C. v. Karen J.O, supra; Matter of Andrew E. Angela N.S., supra. The current acknowledgment of paternity which declares S.D.E. as the legal father to J.D.E. remains in effect. Conclusion: WHEREFORE, the Court finds that Petitioner has failed to establish fraud, duress, or material mistake of fact so as to vacate the acknowledgement of paternity. Therefore, the acknowledgement of paternity stands and P-09133-19 is dismissed with prejudice. This constitutes the decision and order of the Court. Dated: May 20, 2020
