On January 25, 2000 the Petitioner filed a petition seeking child support on behalf of the children Cierra (date of birth October 23, 1986) and Cassie (date of birth July 17, 1988) in the State of Washington.On June 1, 2001, on behalf of the Petitioner, pursuant to the Uniform Interstate Family Support Act, hereinafter referred to as UIFSA, of the New York State Family Court Act, Corporation Counsel filed this Petition for Paternity and Child Support of the two children. The petition alleged that the Respondent, Joseph M., was the biological father of the children.Respondent moved this Court for a dismissal of petition based on equitable estoppel. The Law Guardian joined in this application.On June 26, 2001 this matter was heard by this Court. Evidence was received and the Respondent testified. Petitioner failed to appear and her application for appearance by telephone was denied.The petition was dismissed after trial.Petitioner filed an appeal on June 24, 2001. On June 2, 2003 the Supreme Court of the State of New York, Appellate Division 2nd Department found that the denial of petitioner’s request to testify via telephone was an improvident exercise of discretion. The Appellate Division further held that the doctrine of equitable estoppel is “generally not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support”. D. v. M., 761 N.Y.S.2d 261, 306 A.D.2d 278 (2nd Dept. 2003). The matter was reversed and remanded.A new trial was held on October 7, 2003 wherein the Petitioner appeared and testified via telephone.The parties stipulated that all the evidence previously introduced at the original trial was received into evidence at the new trial. The only additional evidence would be the Petitioner’s telephonic testimony. The Petitioner testified on October 7, 2003.ISSUES PRESENTEDUpon the conclusion of the trial, the Court determined the following issues: 1) whether the doctrine of equitable estoppel precluding paternity was appropriate; and if so, 2) whether a finding of equitable estoppel was in the best interests of the children.FactsOn June 26, 2001 the Respondent putative father, Joseph M., testified that he and the Petitioner had resided together and during that time were having sexual intercourse. The Petitioner was also having sexual intercourse with a man whose name he believed was Mr. D. The Petitioner gave birth to both children while residing with Joseph M..The Respondent claims that one day the Petitioner just disappeared without leaving a note or message. The Respondent ultimately learned that the Petitioner had married Mr. D.While residing with the Petitioner, Joseph M., claims to have supported the children. Although Joseph M. signed an acknowledgment of paternity for the child Cierra he denied paternity of both children. He testified that he signed the acknowledgment of paternity because the Petitioner had asked him. He further testified that Patricia D. contacted him once approximately twelve years after she left him.Joseph M. stated he does not believe he is the father and believes Mr. D. is the father of both children.On October 7, 2003 Patricia D. testified. Patricia D. testified that her maiden name is H. Patricia D. has two daughters, Cierra Marie D. and Cassie Lee D. The children’s names on their birth certificates were Cierra Marie M. and Cassie Lee H. Patricia D. testified that after she married Mr. D. in June, 1990 she had their names changed to “save any embarrassment for them”. Tr. 10/7/03, p. 17 – 18, ll. 25, 1.Patricia D. met Joseph M. approximately one year before she became pregnant with Cierra. She testified that she was having sexual intercourse only with Joseph M. She continued to live with Joseph M. for a few months after the birth of Cierra. They reconciled prior to the birth of Cassie and stayed together until Cassie was approximately eight to nine months old.Joseph M. is named as the father on Cierra’s birth certificate. Patricia D. testified that Joseph M. is not listed as the father on Cassie’s birth certificated due to problems they were having.Patricia D. testified that Joseph M. had acknowledged to her that he was the father of both children.In September of 1990 Patricia D. moved with Mr. D. and the children to the State of Washington.Although Patricia D. testified that the children know Mr. D. as their stepfather they have always referred to him as “dad” and he treats them like his daughters.Patricia D. testified that the reason she did not file for support from Joseph M. until January 1990 was because she did not know his whereabouts. She stated that he had been in hiding and all his family members had moved. She further testified that she had heard that his mother had moved. Patricia D. claimed that she was unaware that Joseph M.’s mother had been living at the same address for twenty-five years and had never moved. She claimed that although she was involved with Joseph M. for three to four years and she visited his mother’s home, she still did not know that address.Patricia D. testified she was able to locate Joseph M. through her daughter Cierra. Patricia D.stated that her daughter Cierra had started talking to Joseph M.’s daughter Ginger “on the computer”. She did not know when or how Cierra and Ginger had made contact stating in colloquy as follows:The Court: Did you tell Joseph M. that you were moving out to Washington with your new husband Mr. D.?The Witness: There was no way to contact him.The Court: Well, then, how did you find him January the 25th of 2000?The Witness: Somehow my daughter and Ginger, his older daughter, started talking on the computer.The Court: What daughter?The Witness: Ginger, his oldest daughter.The Court: Which one of your daughters?The Witness: Cierra Marie.The Court: How did they hook up on the computer?The Witness: Um, I am not sure. You have to ask Cierra.The Court: You didn’t ask you daughter?The Witness: They started talking, um, you know, I cannot remember how they first got together, no.Tr.10/7/03, p. 24-25, ll. 15-25, 2-12.Patricia D. testified that after Cierra and Ginger made contact she asked Ginger to have Joseph M. call her. She stated that Joseph M. then flew her from Washington to New York in June of 2000 to talk about visitation and support. While in New York she never went to his home. Patricia D. met Joseph M. at his place of business and then went to a diner where they discussed visitation and support. Joseph M. agreed to help support the children and sent her $500.00 on two occasions.Patricia D. was separated from Mr. D. when she filed for support in January, 2000. She had previously been separated from Mr. D. On one occasion when they were separated Patricia D. filed for child support against Mr. D. (emphasis added) in the State of Washington. However, her application was denied.Finally, Patricia D. testified that while separated from Mr. D., Mr. D. had an affair and a child as a result of that affair.ANALYSISThe doctrine of equitable estoppel “may successfully be invoked, in the interest of fairness, to prevent the enforcement of rights which would ultimately work fraud or injustice upon the person against whom enforcement is sought”. Nassau Trust Co. V. Montrose Concrete Prods Corp, 56 N.Y.2d 175, 451 N.Y.S.2d 663.An application for equitable estoppel may be made at any time before the child in question reaches the age of twenty one years. Family Court Act §517.Although it has been held that a party generally cannot allege equitable estoppel for the purpose of avoiding child support (see D. v. M., 761 N.Y.S.2d 261, 306 A.D.2d 278 (2nd Dept. 2003) equitable estoppel is applicable where it will serve to promote the best interests of the children and will only be applied where its use furthers the best interests of the child. In the Matter of Cleophous P., Jr., v. Latrice M.R., 750 N.Y.S.2d 380, 299 A.D.2d 936 (4th Dept. 2002); Matter of Charles v. Charles, 745 N.Y.S.2d 572, 296 A.D.2d 547 (2nd Dept. 2002).In the instant matter the Petitioner and Respondent resided together with the child Cierra for a few months after Cierra’s birth and then again prior to the birth of Cassie until Cassie was approximately eight to nine months old. Petitioner then left the Respondent, married another man, moved out of state, and had the children’s names changed all without notifying the Respondent. The Petitioner alleges the Respondent was in hiding and she was unable to locate him or any of his family members. However, the Petitioner’s daughter was in contact with the Respondent’s child and the Respondent’s mother had remained at the same address for twenty-five years. Petitioner waited ten years after moving to Washington State to commence this proceeding and only after her husband and she separated and she was unable to obtain support from him in their home state.Furthermore, the Petitioner testified that the children refer to Mr. D. as their father and he has always treated them like his daughters.The Respondent credibly testified that while he and the Petitioner were having sexual relations the Petitioner was also having sexual relations with Mr. D.Courts have held that doctrine of equitable estoppel may be invoked to thwart the destruction of an existing parent-child relationship. In the Matter of Ettore I., v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733 (2nd Dept. 1987). There is no dispute that in the instant matter the children refer to Mr. D. as “dad”, he has treated them as his daughters and that the Respondent has had virtually no contact with these children.The Petitioner brought this Petitioner ten years after relocating to Washington after she separated from her husband and he had a child with another woman.This Court does not credit the Petitioner’s testimony and finds that there is an existing parent- child relationship between the subject children and the Petitioner’s husband, Mr. D. Accordingly, the petition is dismissed based on the doctrine of equitable estoppel.FINDINGS1.) It is in the best interests of the children that the existing parent-child relation continue.2.) The doctrine of equitable estoppel preserves the existing relationship between the children and their step-father.3.) The Respondent has successfully raised the doctrine of equitable estoppel as a defense to the Petitioner’s paternity petition.DECISIONThis Court finds that Respondent’s motion to equitably estop the petition is granted.Accordingly, the petition is dismissed.This constitutes the decision and order of the Court. n
