DECISION/FINDINGS OF FACT AND ORDER AFTER INQUEST On May 12, 2021, the mother, Elizabeth F.H. (hereinafter “Petitioner” or “Ms. F.H.”) filed a petition against Dany C.M. (hereinafter “Respondent” or “Mr. C.M.”). She sought to vacate an Acknowledgment of Paternity that Mr. C.M. signed for I.E.C.F. (hereinafter “I.”), born on January 22, 2019. Ms. F.H. was represented by David Peter Sibek, Esq. (hereinafter “Mr. Sibek.”). Attempts were made to personally serve Mr. C.M., to no avail. On January 25, 2022, Mr. Sibek submitted an affidavit of due diligence and the Court ordered alternate service by publication. The Court assigned an attorney for the child. On April 28, 2022, Mr. Sibek provided proof of service by publication. Thereafter, the matter proceeded to an inquest and was completed. Mr. Sibek represented Ms. F.H. and Theresa A Spinillo, Esq. (hereinafter “Ms. Spinillo”) represented I. Ms. F.H. testified with the assistance of a court staff Spanish interpreter. No other witnesses testified and no documentary evidence was offered. The matter was adjourned for summations and a report from Ms. Spinillo. On May 26, 2022, Ms. F.H. appeared with Mr. Sibek and Ms. Spinillo was present for I. Mr. Sibek submitted a written closing argument. See Closing Statement (Sibek, 05/26/222), Nassau County Family Court Docket Number P-03382-21. The Court reserved decision. On that same date, after having previously spoken with I. on two separate occasions, Ms. Spinillo delivered an oral report. She stated that although I. told her that he has a mother, he does not identify anyone as his father. Although she did not raise the doctrine of equitable estoppel, Ms. Spinillo’s position on I.’s behalf was a concern that he not be left fatherless. Having considered the evidence presented at trial, the law, and counsel’s arguments, the Court’s decision follows: SUMMARY OF THE EVIDENCE Ms. F.H. testified that in July, 2017, she started a relationship with Mr. C.M. She told the Court that they lived together and had sexual intercourse until March 30, 2018. She stated that they separated from March 31, 2018 until June, 2018. She explained that while they were apart, she was living in Queens and had no contact with him. She elaborated that during that time, she had sexual intercourse with a man named “Jhonathan Bravo,” and no one else. She stated that she does not know Jhonathan Bravo’s current whereabouts. Ms. F.H. testified that in June, 2018, when she got back together with Mr. C.M., she was eight weeks pregnant. She explained that she had nowhere to go so she moved back into his home. She stated that she resumed having sexual intercourse with him right away. Ms. F.H. testified that her due date was January 19, 2019. She told the Court that on January 22, 2019, when she was forty-one weeks pregnant, she gave birth to a son whom she named I. She stated that on March 7, 2019, Mr. C.M. signed an Acknowledgment of Paternity for I. She stated that she was there when he signed it. Ms. F.H. testified that she and Mr. C.M. knew that he was not I.’s father. She explained that Mr. C.M. told her that he wanted to be I.’s father even if he was not I.’s biological father. She told the Court that Mr. C.M. wanted to take I. away from her. Ms. F.H. testified that she permitted Mr. C.M. to sign the Acknowledgment of Paternity because she felt forced to do so. She explained that Mr. C.M. was mentally, emotionally and physically abusive to her while she was pregnant with I. She elaborated that he would threaten her, lock her in rooms, bathe her with freezing cold water, and hit her. Ms. F.H. testified that he often left black and blue marks on her stomach, legs, face, and arms. She told the Court that she reported her injuries to the police and they took pictures of them, but she never sought medical attention. She stated that Mr. C.M. was arrested for hurting her. She told the Court that an order of protection was issued in her favor and against Mr. C.M., but he violated that order multiple times. Ms. F.H. testified Mr. C.M. was also abusive to her after I. was born. She told the Court that while she was breastfeeding I., Mr. C.M. started hitting her arms and legs. She elaborated that she told him to wait for her to put I. in his crib, but he refused and she had to push him away just as he was about to hit I. with a closed fist. Ms. F.H. testified that Mr. C.M. told her that if she did not let him sign the Acknowledgment of Paternity, he would become violent with her. She stated that he also told her that if she allowed him sign the document, he would let her go to Colombia with I. Ms. F.H. testified that even though she let Mr. C.M. sign the Acknowledgment of Paternity, he never let her go. She told the Court that Mr. C.M. told her that he could not stand the fact that he was living with her since she had with child with someone else. She stated that it was hard living with Mr. C.M. since he has a “macho” personality. Ms. F.H. testified that in March, 2019, she ended her relationship with Mr. C.M. She told the Court that after she left his home, she sought the help of a therapist to deal with Mr. C.M.’s behavior towards her. Ms. F.H. testified that when I. was about two or three months old, due to Mr. C.M.’s violence in the household, she met with a social worker. She told the Court that she was then put in contact with an attorney. She stated that she told the attorney that Mr. C.M. is not I.’s father. Ms. F.H. testified that the attorney told her the best thing that she could do was to file for custody. She stated that in connection with that custody proceeding, in July, 2019, the family court awarded Mr. C.M. supervised visitation with I. She explained that because of Mr. C.M.’s violent propensities, the visits were supervised at the Education & Assistance Corporation. She told the Court that Mr. C.M. had supervised visits with I. from the time I. was six months old until he was about one years old. She stated that the worldwide COVID-19 pandemic caused Mr. C.M.’s visits to be suspended. Ms. F.H. testified that the last time Mr. C.M. saw I. was when I. was approximately two years old. She stated that she was told that “she needed to stop the custody petition and start this process first.” Ms. F.H. testified that once she withdrew the custody petition, Mr. C.M.’s visitation ceased altogether. She told the Court that Mr. C.M. never filed for visitation and does not care about I. Ms. F.H. testified that she wants to vacate the Acknowledgment of Paternity Mr. C.M. signed because Mr. C.M. is violent and aggressive. She told the Court that he has harmed her and tried to harm I. She stated that Mr. C.M. intimidated her so that she would allow him to sign I.’s Acknowledgment of Paternity. She told the Court that Mr. C.M. takes drugs. Ms. F.H. testified that I. has never referred to Mr. C.M. as his father, but he sometimes calls her boyfriend as well as a man at his daycare, “daddy.” DISCUSSION The New York State Family Court Act (hereinafter “FCA”) grants authority to Support Magistrates to determine paternity issues. See N.Y. FAM. CT. ACT §§439(a), (b) (McKinney’s 2022); see also N.Y. FAM. CT. ACT §532(a) (McKinney’s 2022). A Support Magistrate is afforded wide discretion in that regard.1 See N.Y. FAM. CT. ACT §141 (McKinney’s 2022). Where paternity issues arise, New York courts base their determinations first and foremost upon the best interests of the subject child. See Shondel J. v. Mark D., 853 N.E.2d 610, 611-13 (N.Y. 2006); see also Jose F.R. v. Reina C.A., 46 A.D.3d 564, 564-65 (2d Dep’t 2007); Gina L. v. David W., 34 A.D.3d 810, 811 (2d Dep’t 2006). A signatory to an Acknowledgment of Paternity, who was at least eighteen years of age at the time of execution, may file a petition to vacate such document within sixty days of the signing date or the administrative or judicial proceeding date, whichever is earlier. See N.Y. FAM. CT. ACT §516-a (b)(i) (McKinney’s 2022); see also Vaskovtsev v. Melska, 174 A.D.3d 633, 634 (2d Dep’t 2019). After such time limit has expired, where a party challenges the acknowledgment in court, such party must prove fraud, duress, or material mistake of fact in the signing. See N.Y. FAM. CT. ACT §516-a (b)(iv) (McKinney’s 2022); see also Vaskovtsev, 174 A.D.3d at 634; Mark A.M. v. Lesley R.S., 169 A.D.3d 1046, 1046 (2d Dep’t 2019); Angelo A.R. v. Tenisha N.W., 108 A.D.3d 560, 560 (2d Dep’t 2013); Luis Hugo O. v. Paola O., 129 A.D.3d 976, 976 (2d Dep’t 2015). A family court must find a valid basis to vacate of an Acknowledgment of Paternity prior to considering whether there exists a reason why a petitioner should be equitably estopped from such vacatur. See Vaskovtsev, 174 A.D.3d at 634-35; see also Mark A.M., 169 A.D.3d at 1046; Angelo A.R., 108 A.D.3d at 560; Luis Hugo O., 129 A.D.3d at 976. New York State courts apply the equitable estoppel doctrine in order to protect a child from an untimely assertion or denial of paternity, which, if permitted, would intrude upon an existing, legally recognized parent-child relationship. See e.g. Angelo A.R., 108 A.D.3d at 561 (equitable estoppel safeguards child’s interests where parent-child bond exists); Matter of Greg S. v. Keri C., 38 A.D.3d 905, 905-06 (2d Dep’t 2007) (applying equitable estoppel in best interests of child and dismissing paternity petition since respondent held himself out as father of child, had established strong relationship with child, was called “dad” or “daddy” by child, and had provided for all of child’s needs); Matter of Nathalie N. v. Jerome W., 29 A.D.3d 912, 913 (2d Dep’t 2006) (finding that Family Court “properly sought to protect the important interest of the operative parent-child relationship”); Matter of Gina L. v. David W., 34 A.D.3d 810, 811 (2d Dep’t 2006) (noting that putative father will be estopped from denying paternity where child justifiably relied upon man’s representations that he was child’s father); Charles v. Charles, 296 A.D.2d 547, 548-49 (2d Dep’t 2002) (“[Equitable estoppel] can be used to estop a father from denying paternity to avoid support obligations.”); Matter of Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 412 (2d Dep’t 1991) (affirming family court’s denial of father’s motion to vacate order of filiation despite privately arranged DNA test excluding him as father where father and child had almost ten year relationship in which father had supported child and was only father child ever knew). A hearing must be held to determine whether equitable estoppel should be applied. See Vaskovtsev, 174 A.D.3d at 635; Angelo A.R., 108 A.D.3d at 560. Such best interests hearing is necessary to determine whether the child would be harmed by vacating the Acknowledgment of Paternity. See Miches-Lewis v. Lewis, 2022 N.Y. App. Div. LEXIS 2727, at *2 (2d Dep’t 2022); see also Angelo A.R., 108 A.D.3d at 560; Darlene L.-B. v. Claudio B., 27 A.D.3d 564, 564-65 (2d Dep’t 2006). If a court concludes that the application of the equitable estoppel doctrine is not warranted,2 a deoxyribonucleic acid test (hereinafter “DNA”) must be ordered to determine the child’s paternity. See Mark A.M., 169 A.D.3d at 1047; see also Angelo A.R., 108 A.D.3d at 560. Should DNA reveal that the individual who executed the Acknowledgment of Paternity is not the child’s father, the Acknowledgment of Paternity must be vacated. See Mark A.M., 169 A.D.3d at 1047; see also Angelo A.R., 108 A.D.3d at 560. The proof showed that Ms. F.H. separated from Mr. C.M. on March 31, 2018 at which point she stopped having sexual intercourse with him. The proof also showed that she began having sexual intercourse with an individual named “Jhonathan Bravo.” The proof further showed that Ms. F.H. resumed her relationship with Mr. C.M. in June, 2018, which included having sexual intercourse with him. The proof finally showed that Ms. Fajardo gave birth to I. on January 22, 2019 when she was forty-one weeks pregnant. The Court takes judicial notice of the human gestational period – the time between conception and birth — to be between thirty-eight and forty-two weeks.3 Thus, Ms. F.H.’s testimony that she ceased having sexual relations with Mr. C.M. on March 31, 2018 places him out of the time period of conception. The Court finds Ms. F.H.’s recollection of the exact date she stopped having sexual intercourse with Mr. C.M. to be surprising given that during her testimony she failed to recall the date she started her relationship with him, the date she got back together with him, the date that she started having sexual intercourse with “Jhonathan Bravo” and other pertinent details. Thus, Mr. C.M.’s paternity may actually be in the realm of possibility. Such a possibility, coupled with Ms. F.H.’s oftentimes conflicting testimony with no substantiating proof, gives this Court pause. However, there being no one present to challenge Ms. F.H.’s unsubstantiated testimony, the Court finds that she has established that she was under duress when Mr. C.M. signed I.’s Acknowledgment of Paternity. Having found a valid basis to vacate I.’s Acknowledgment of Paternity, the Court must now consider whether equitable estoppel precludes vacatur of the document. Notwithstanding Ms. Spinillo’s report in which equitable estoppel was not risen, but there exists a concern that the child not be left fatherless, the Court finds that the matter is properly served by a best interests hearing. See Commissioner of Soc. Servs. v. Keith H., 253 A.D.2d 815, 817 (2d Dep’t 1998) (“[I]n considering the welfare of the child the court must balance the harm of illegitimatizing the child and taking away love, affection, and support against the right of the child to know who its biological father is, along with the father’s support.”). CONCLUSION ADJUDGED, that Ms. F.H. met her burden of proving that she was under duress when the parties signed the Acknowledgment of Paternity at issue; and it is therefore, ORDERED, that the matter is respectfully referred to the Honorable Danielle M. Peterson for a best interests hearing. The parties are directed to appear before Judge Peterson on June 13, 2022 at 11:00 A.M. to pick a trial date. This constitutes the decision, opinion and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL 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. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: May 27, 2022
