FINDINGS of FACT Support Magistrate Sandra Stines, makes the following decision/ findings of fact after trial: Procedural history On March 14, 2024 Carla A N-N, Petitioner (hereinafter Ms. N-N) filed a “petition to vacate acknowledgment of parentage” against Steven J U-G, Respondent (hereinafter Mr. U-G). See, Petition to Vacate Acknowledgment of Parentage, Queens County Family Court Docket P-06147-24. On October 1, 2024, Ms. N-N and Mr. U-G appeared (both waiving counsel) for trial. The Court heard their testimony. At the close of proof decision was reserved. Evidence Testimony Ms. N-N’s testimony Ms. N-N testified “when I signed the acknowledgment of parentage I believed that Mr. U-G was the father”. At the time of birth, “we both decided to not take the dna test and sign the acknowledgment of parentage”. She “assumed that Mr. U-G was the father” of the child until she had the child take a “dna test” in January 2023 that showed he is not. Ms. N-N “did the dna test for some documents I wanted to take for my daughter”. Mr. U-G testimony Mr. U-G testified “I assumed I was the father at the time I signed the acknowledgement of parentage”. Mr. U-G lived with Ms. N-N and subject child for two years but after he took “the dna test” he stopped living or visiting the child because the “dna test” showed he is not the biological father of the child. Mr. U-G has not had contact with the child since last year. Documentary evidence Court exhibit 1 Acknowledgment of parentage Ms. N-N presented two documents for evidence she purported to be dna tests but they were not admitted in evidence because they are hearsay. Discussion An acknowledgment of parentage establishes the parentage of and liability for the support of a child. Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv). Additionally an acknowledgment of parentage is void if, at the time of signing, any of the following are true: (i) a person other than the signatories is a presumed parent of the child pursuant to section twenty-four of the domestic relations law; (ii) a court has entered a judgment of parentage of the child; (iii) another person has signed a valid acknowledgment of parentage with regard to the child; (iv) the child has a parent pursuant to section 581-303 of the family court act other than the signatories; (v) a signatory is a gamete donor under section 581-302 of the family court act; or (vi) the acknowledgment is signed by a person who asserts that they are a parent under section 581-303 of the family court act of a child conceived through assisted reproduction, but the child was not conceived through assisted reproduction. Family Ct Act §516-a (c) (i)-(vi). A hearing is required to determine fraud, duress, or material mistake of fact. Matter of Andrew E. v. Angela N.S. 165 A.D.3d 658, 85 N.Y.S. 3d 115 (2d Dept 2018); Family Ct Act §516-a (b)(iv)). This petition alleged “sixty days have elapsed since the signing of the acknowledgement of parentage. The following fraud duress or material mistake of fact has occurred (specify) the respondent is not the biological father but signed the parentage at (child’s name) time of birth. I, the mother assumed that my ex-partner for 3 years was her biological father. We never had a dna test done until later.” At fact-finding Ms. N-N clarified that it was Mr. U-G who she referred to as her ex-partner of 3 years in her petition. Fraud, requires showing that a person justifiably relied on the other party’s fraudulent statements or representations at the time they signed the acknowledgment of parentage. Matter of Joshua AA. v. Jessica BB., 132 AD3d 1107, 1108, 19 N.Y.S.3d 116 (3d Dept. 2015). Here, neither party alleged that the other made fraudulent statements when signing the acknowledgment of paternity. Duress requires a showing that a party “was forced to agree to [sign the acknowledgment] by means of a wrongful threat which precluded the exercise of [her] free will’”. Matter of Jeannette GG. v. Lamont HH 77 A.D.3d 1076, 909 N.Y.S. 2d 222 (3d Dept 2010). No such duress was presented herein. Matter of Wimberly v. Diabo 42 A.D.3d 599, 839 N.Y.S. 2d 822 (3d Dept 2007) addressed mistake of fact to vacate an acknowledgement of parentage where a Respondent alleged he only signed an acknowledgement of parentage because he believed it was necessary to obtain benefits. Relying on principles of contract law the Diabo court held that for mistake of fact, that mistaken fact must be truly material — i.e., substantial and fundamental to the nature of the contract — so as to entitle a party to void that document. Id. Diabo found no mistake of fact to vacate the acknowledgment of parentage. An acknowledgment of parentage is indeed a contract, “generally, a contract entered into under a mutual mistake of fact is voidable and subject to rescission” because it “does not represent the ‘meeting of the minds’ of the parties”. Jerome M. Eisenberg, Inc. v. Hall 48 NYS 3d 71; 147 A.D.3d 602 (1st Dept 2017) (Matter of Gould v. Board of Educ. of Sewanhaka Cent. High School Dist.,81 NY2d 446, 453, 616 NE2d 142, 599 NYS2d 787 [1993]). In order to justify rescission, “[t]he mutual mistake must exist at the time the contract is entered into and must be substantial” (id.). See also, Carney v. Carozza 16 A.D.3d 867, 792 NYS 2d 642 (3d Dept 2005) (A contract or stipulation entered into under a mutual mistake of fact is subject to rescission if such mutual mistake existed at the time the contract was entered into and is so substantial that the agreement does not represent a true meeting of the parties’ minds. At the time the acknowledgment of paternity here was signed Ms. N-N and Mr. U-G “assumed” i.e., believed that Mr. U-G was the father. Mr. U-G and Ms. N-N acted on that belief cohabitating as a family wherein Mr. U-G was the father. Two years after signing the acknowledgment of parentage, Mr. U-G and Ms. N-N allege their belief that Mr. U-G is the father was a mistake. To support that Ms. N-N submitted two documents which she purported were “dna” results. Those documents were not admitted because they were hearsay. The Guide to New York Evidence, (rule 8.00) (Hearsay is an out of court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement. The declarant of the statement is a person who is not a witness at the proceeding, or if the declarant is a witness, the witness uttered the statement when the witness was not testifying in the proceeding. A statement of the declarant may be written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion.), These documents did not meet hearsay exceptions including CPLR 4518 (a) (Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.) CPLR 4518 (d) is a hearsay exception for genetic marker or DNA. See, CPLR 4518(d) (Any records or reports relating to the administration and analysis of a genetic marker or DNA test, including records or reports of the costs of such tests, administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law are admissible in evidence under this rule and are prima facie evidence of the facts contained therein provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or the state or by an employee delegated for that purpose, or by a qualified physician. If such record or report relating to the administration and analysis of a genetic marker test or DNA test or tests administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law indicates at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall, if unrebutted, establish the paternity of and liability for the support of a child pursuant to articles four and five of the family court act). The documents Ms. N-N did not meet the exceptions in CPLR 4518(d). Ms. N-N and Mr. U-G testified that they believe that Mr. U-G is not the father of the child herein and that belief is based on “dna test” results they saw. That testimony is hearsay, and their belief is not a fact. Ms. N-N did not present credible evidence that what she claims is a fact is actually a fact because Ms. N-N and Mr. U-G’s belief based on hearsay that now he is not the father is not a fact. Ms. N-N did not prove that the acknowledgment of parentage was signed under fraud, duress, or due to a material mistake of fact. Mr. U-G did not oppose the relief sought in Ms. N-N’s petition at the fact finding and at a court appearance on October 1, 2024 said he agreed to vacate the acknowledgement of parentage. But Mr. U-G’s non opposition at fact finding and statement on October 1, 2024 does not change that it is Ms. N-N ‘s burden to prove fraud, duress, or material mistake of fact to vacate the acknowledgment of paternity. Family Ct Act §516-a (b)(iv) Although principles of contract law apply to vacating acknowledgements of parentage, whether two parties to an acknowledgement of parentage agree to vacate same, unlike many contracts that may be vacated upon agreement, such agreement is not a basis for vacatur of acknowledgment of parentage. Family Ct Act §516-a was enacted for the “timely and efficient establishment of paternity” (see legislative notes thereto). Were it that parties to acknowledgments of parentage did not have to prove fraud, duress, or material mistake of fact at the time the acknowledgments were signed but rather could change their mind based on agreement that would not be efficient and have far reaching effects on children, hence Family Ct Act §516-a (b)(iv). Furthermore every acknowledgment of parentage contains the following, “we understand that signing this acknowledgement of paternity is voluntary and will establish paternity of our child and have the same force and effect of an order of filiation determining paternity…. We have received written notice of our legal rights (including the time frames to withdraw responsibilities alternatives and the consequences of signing the acknowledgement of paternity and we understand what the notice states…we certify that the information we provide below is true”. Those statements were read to the parties on the record, and they acknowledged same. This reflects the intent of Family Ct Act §516-a and gravity of signing an acknowledgment of parentage. Consistent with the statutory language, if a party fails to meet their burden of proof on the issue of fraud, duress, or material mistake of fact, the court need not order a genetic marker test to determine the child’s paternity. Matter of Mark A.M. v. Lesley R.S. 169 A.D.3d 1046, 92 N.Y.S.3d 902 (2d Dept 2019) (disagreeing with the Family Court’s vacatur of the acknowledgment of paternity, as the petitioner failed to prove that the acknowledgment of paternity was signed by reason of fraud, duress, or material mistake of fact) citing Matter of Westchester County Dept. of Social Servs. v. Robert W. R. 25 AD3d 62, 72, 803 NYS2d 672 (2d Dept 2005]). Based on the afore-stated the petition herein is denied. Dated: October 3, 2024
