IN RE: a Paternity Proceeding Under Article 5 of the Family Court Act (2021)

The primary issue in this case is who should be the legally recognized father of the subject child, Jocelyn R. (Jocelyn). Two persons claim to be her father, petitioner Joseph S. (Mr. S. or petitioner) and respondent Leroy R. (Mr. R. or respondent) who is the presumed legal father. In this proceeding arising out of an Article 5 paternity petition, the Court considers the application of the presumption of paternity and paternity by estoppel which were invoked by Mr. R. to prevent Mr. S. from belatedly asserting a claim to paternity.

Petitioner seeks to establish his paternity of the subject child Jocelyn, who was born on XX/XX/07 during respondent's marriage to Jocelyn's mother, Crystal B. (Ms. B. or respondent mother). Relying upon his intact marriage to Ms. B. at the time that Jocelyn was born as establishing a presumption of paternity, and on his assumption of parental responsibilities as implicating equitable estoppel, Mr. R. seeks the dismissal of Mr. S.'s paternity petition.

When Mr. S. filed his paternity petition in February 2017, respondent mother initially opposed his application, arguing that Jocelyn had an intact father-child relationship with Mr. R. At that time, they lived as a family unit until the children, including Jocelyn, were placed into kinship foster care with two of Mr. R's adult children. She has since changed her position and supports Mr. S.'s application for a genetic marker test or DNA test. The attorney for the child also argued when the petition was filed that declaring Mr. S. to be Jocelyn's father was not in her best interests. However, in his written summation, he asked the Court to grant Mr. S.'s application and permit him to undergo genetic marker testing.

At one point, Ms. B. was willing to consent to the issuance of an order of filiation to Mr. S. However, Mr. R. did not consent to the order, and argued that the presumption of legitimacy and the doctrine of equitable estoppel prevented both genetic testing and an order of filiation. Thereafter, a lengthy hearing was held on whether the presumption of paternity barred Mr. S.'s paternity petition or whether petitioner was equitably estopped from any further pursuit of his petition. Unfortunately, delays in addressing Mr. S.'s paternity petition due to the COVID—19 pandemic deferred a speedier resolution of his petition and Mr. R's application.

The attorney for the child, as well, requested that the Court interview Jocelyn, in-camera, about her preferences. Counsel for the parties did not object to the in-camera interview. The first in-camera interview scheduled for March 19, 2020 was cancelled. Questions from the parties' attorneys were collected and asked during the in-camera hearing held on April 14, 2021. The child's attorney was present during the interview; the parties and their respective attorneys were not. A verbatim record of the interview has been transcribed.

Now, based on the evidence adduced at the hearing, including the credibility of all witnesses, the legal arguments made by the parties, and the applicable case law, the Court concludes that the interests of justice, and the best interests of Jocelyn in this matter, will be served by granting Mr. S.'s paternity petition to the extent of ordering genetic marker or DNA testing,¹ and denying Mr. R.' effort to equitably estop him from asserting paternity.

EQUITABLE ESTOPPEL HEARING

The paternity petition was filed by Mr. S. on February 7, 2017, a month after Jocelyn and her seven siblings were remanded to the care and custody of the Administration for Children's Services (ACS) in a neglect and abuse proceeding filed under Article 10 of the Family Court Act (FCA).² Jocelyn's siblings include Jaheim B.(DOB: XX/XX/04), Jaquell R. (DOB: XX/XX /06), Justin R. (DOB: XX/XX/10), Jacob R. (DOB: XX/XX/14) and a set of infant twins, Jayden B. (DOB: XX/XX/16) and Jayda B. (DOB XX/XX/16).³ The children entered foster care due to allegations of inadequate guardianship, lack of food, clothing and shelter, and malnutrition or failure to thrive. There also was an allegation of medical negligence due to one of the children's asthma. Initially, the permanency goal was to return the children to their parents. However, the permanency goal was changed to Kinship Guardianship (KinGAP) in 2018.⁴ At this time, the six older children, including Jocelyn, wish to remain with their kinship foster parents, both of whom are the adult children of Mr. R.

Mr. S. sought an order of filiation or DNA testing to establish his paternity of Jocelyn. Mr. R. opposed the petition and argued that Mr. S. was equitably estopped from continuing his paternity petition and proceeding with DNA testing. The equitable estoppel hearing commenced on July 5, 2017, and continued on November 29, 2017, December 6, 2017, May 1, 2018, June 25, 2018, November 25, 2019, and March 29, 2019. This Court heard testimony from Mr. S., Mr. R., Ms. B., Jocelyn's biological mother and co-respondent, and Lee Tyrone B. (Mr. B.), Jocelyn's half-brother and current foster parent. Entered into evidence were the marriage certificate of Mr. R. and Ms. B., as Respondent's exhibit A, and several photos reflecting the relationship and contact between Mr. S. and Jocelyn throughout the years, and also with Mr. S.'s father, as Petitioner's exhibit 1. The Court, as well, conducted an in-camera interview Jocelyn on April 14, 2021. Written summations from the parties were received on June 25, 2021.

In her written summation, counsel for Mr. S. conceded that Mr. B. resided in the home with Jocelyn until she was removed and placed into kinship foster care. Nonetheless, she argued that petitioner had established a significant relationship with Jocelyn, and that it was in her best interests to permit genetic marker testing. The attorney for Mr. B. argued that Jocelyn recognizes him as her father, that he has been the child's primary caregiver, and that it would be “detrimental to the child's interests to disrupt [his] close relationship” with Jocelyn (Matter of Fidel A. v Sharon N., 71 AD3d 437, 437 [1st Dept 2010]). His attorney also asserts that Mr. S. failed to promptly assert his paternity rights. The first witness to testify was Mr. R. Thereafter, Ms. B., Jocelyn's foster parent and petitioner testified. Shortly after testifying, Mr. R. moved to Alabama, where he remains.

On July 5, 2017, Mr. R. testified that he was 51 years of age, and he has been married to Ms. B. for approximately 11 years. He has a total of 14 children; he has eight children with Ms. B., and Jocelyn was his third child with her. At the time of his testimony, Jocelyn was nine years old.

According to Mr. R., when Ms. B. became pregnant with Jocelyn, they were living together in Staten Island. Additionally, Mr. R.’s testified that he was present at the hospital when Jocelyn was born, and it is his name on Jocelyn's birth certificate. Mr. R. also testified that he brought his wife and Jocelyn home from the hospital.

He described Jocelyn as being a happy baby. Jocelyn slept in a crib next to the couple's bed, and he took on the role of feeding and caring for her. He testified that her first words were “Daddy.” When questioned about what made Jocelyn happy, Mr. R. testified that coloring books and books make her happy. He further testified that Jocelyn is very smart, and she began reading when she was three or four years old. She loves going to school, and cries when he keeps her home if she is sick. He added that Jocelyn is “good” in reading and math. Jocelyn also loves her gym class, playing ball, and drawing. He further testified that Jocelyn loves her brothers and sisters, and likes being the “boss” or older sister. Jocelyn helped with household tasks, such as cooking and cleaning the kitchen. He went on to describe her as loving to eat “country stuff” like “chicken and gravy.” He has a close bond with Jocelyn, and even taught her about electricity and mechanics. On Sundays, the family attends church services, and afterwards, the family goes to eat in a restaurant. He noted that Jocelyn enjoys singing gospel songs. Furthermore, he is very proud of his children, and is especially proud of the way that Jocelyn dresses. He stated that Jocelyn always wanted to be a princess, and she dresses up to reflect that image.

When questioned about Mr. S., respondent remembered that when Jocelyn was three years old, another paternity petition was filed by petitioner in Richmond County Family Court. However, he thought the case was dismissed when Mr. S. failed to appear. Since Jocelyn has been in foster care, the child continues to tell him that she misses him. He also admitted that Jocelyn is frustrated with him because he was “taking too long to get myself together.” Because of his diabetes, he lost his toes, and then his two feet, and has been confined to a wheelchair. Mr. R. further admitted that he knew Mr. S. visited with Jocelyn.

Mr. R. testified that when Jocelyn was seven years old, Ms. B. informed him that he was not Jocelyn's biological father. However, even after learning that he was not the alleged biological father, Mr. R. believes that he is “Jocelyn's father” and has always held himself out as such.⁵

Ms. B. testified about her extramarital affair with Mr. S. who she was seeing when Jocelyn was conceived. Ms. B. testified that she met Mr. S. at a Halloween party in 2006, and shortly thereafter, she began a sexual relationship with him. Their relationship lasted approximately one year. Ms. B. insisted that she had informed Mr. R. when she was pregnant that he was not the biological father. She explained that throughout Jocelyn's life, Mr. S. had periodically undertaken some degree of involvement in Jocelyn's life, including giving her money for the child, providing some gifts, visiting parks and playgrounds with her, and visiting Jocelyn at her home when Mr. R. was not home. Mr. R., however, remained unaware of petitioner's involvement with Jocelyn. Ms. B. further testified that when the child was an infant, she brought Mr. S. to her home to visit with Jocelyn. When Jocelyn was about five years old, she told Jocelyn that Mr. S. was her biological father. She encouraged, fostered and nurtured a relationship between Mr. S. and Jocelyn. When Jocelyn was older, she would take Jocelyn to visit with Mr. S. and his father who also lived in Staten Island. Although she testified hearing Jocelyn call Mr. S. “Daddy Joey,” or “Joey,” she testified that Mr. S. knew that she was married, and that Jocelyn also called Mr. R. “Daddy.”

The foster parent, Mr. B. testified that Mr. R. is his biological father. He is currently the kinship foster parent to two of the children: Jocelyn and Janasta. He met Jocelyn when ACS approached him and his brother to act as foster parents to six of the children. At the time of his testimony, he had been the children's foster parent for approximately ten months. He described Mr. R. as a “loving father” who would “give [him] the world if he could.” He further testified that it was Mr. R. who taught him how “to read, write, and wash.” He testified about observing Mr. S.'s visits with Jocelyn at the foster care agency. He recalled that Jocelyn called him “Joey.” He never heard her calling petitioner “Daddy.” Since having Jocelyn in his home, she had never asked him to call Mr. S. for her. Instead, she would ask to speak with Mr. R. “all the time” and called him her “Dad.” Additionally, he testified that Jocelyn likes to talk with Mr. R. about her daily life. He added that when Jocelyn is sad, and he cannot comfort her, he would contact Mr. R. to cheer her up. Lastly, Mr. B. testified that at family visits at the foster care agency, Jocelyn would be very happy to see Mr. R., and would grab him, and hug him. She was very affectionate with him.

Mr. S. testified about the length and nature of his relationship with Jocelyn. Since her birth in 2007, he has had a 13-year relationship with her. Shortly after she was born, he met Jocelyn on Martin Luther King Day at a hotel. Mr. R. was not present at that meeting. The decision to meet at a hotel, and not at her home, was made by Ms. B. He next met Jocelyn at Ms. B.'s brother's home. He also testified that he has taken Jocelyn to his family's home. He continues to have a close relationship with her while she is in foster care.

Mr. S. introduced into evidence, through his attorney, photographs of himself and his family with Jocelyn at various stages of her life. The first photograph was taken when Jocelyn was approximately one month old. When asked during cross-examination why he failed to sign an acknowledgement of paternity for the child after Ms. B. asked him to come to the hospital, Mr. S. replied that she did not want him to come to the hospital, and that he had “Attention Deficit Disorder.” Mr. S., as well, testified that he has provided Ms. B. with financial support, and clothing for Jocelyn.

He further testified about his attempt to establish paternity when the child was one-year old after Ms. R. stopped giving him access to Jocelyn for a time. He went to the Staten Island Family Court, and filed a paternity petition against Mr. R. and Ms. B. He testified that they both attended the court proceeding. However, he testified that the case did not result in any adjudication; it was subsequently dismissed. After the dismissal, Ms. B. once again allowed him to see Jocelyn. Mr. S. testified that he is not interested in replacing Mr. R. in Jocelyn's affections, he simply wants to continue his relationship with Jocelyn.

Before the in-camera interview held with Jocelyn, Mr. R.' attorney submitted questions to be asked of her during the interview. At the time of the interview, Jocelyn highlighted the fact that she has three fathers: Mr. R. who is her “real” daddy, “Daddy Joey” who she appreciates and spends time with, and Mr. B., her current foster father who she wishes to remain living with.

ANALYSIS

Mr. R. first argues that the presumption of paternity applies to this case. He further argues that even if the presumption of paternity does not apply, the doctrine of equitable estoppel does. Consequently, the legal analysis in this case is two-fold: first, the Court is asked to consider whether the presumption of paternity applies. If the presumption applies, the Court is asked to consider whether the presumption was rebutted by Mr. S. However, if the presumption is inapplicable or has been rebutted, the Court must then consider whether the doctrine of equitable estoppel applies.

Generally, it is an established legal presumption that every child born during a marriage is the legitimate child of both parents (see Domestic Relations Law § 24 [1]; FCA § 417; Matter of Fay, 44 NY2d 137, 141 [1978]; Matter of David L. v Cindy Pearl L., 208 AD2d 502, 503 [2d Dept 1994]). This presumption of paternity is considered one of the strongest presumptions within the law (Matter of Findlay, 253 NY 1, 7 [1930]). Additionally, a party may be estopped from denying the husband's paternity of a child born during a marriage if ether the husband or the wife holds the child out to be the child of that marriage.

However, the presumption of paternity may be rebutted by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy (see Matter of Barbara S. v Michael I., 24 AD3d 451, 451 [2d Dept 2005], citing Fung v Fung, 238 AD2d 375, 376 [2d Dept 1997]; Matter of Walker v Covington, 287 AD2d 572, 572 [2d Dept 2001]). The policy rationale supporting the presumption is the concern that intact marriages should not be undermined by disputes over parentage. Nevertheless “the presumption does not consecrate as truth the extravagantly improbable” (Id. at 8). In other words, the presumption is not “intended to suppress the truth and perpetuate a falsehood” (Matter of Constance G. v Lewis L., 119 AD2d 209, 211 [2d Dept 1986] [internal citations omitted]). Rather, the presumption yields to “the sway of reason” and may be rebutted (Matter of Findlay, 253 NY at 7). Hence, the presumption prevails “unless common sense and reason are outraged by a holding it abides” (id.; see also Matter of Constance G. v Herbert Lewis L., 119 AD2d 209, 211 [Fam Ct Nassau County 1972], lv dismissed 70 NY2d 667 [1987]).

The presumption arose prior to the advent of modern scientific proof. New York courts have not hesitated to order the production of evidence in the form of blood tests to overcome the presumption of legitimacy (see e.g. Matter of Kwartler v Kwartler, 291 NY 689, 689 [1943]; Matter of Vito L. v Filomena L., 172 AD2d 648, 650 [2d Dept 1991]; Matter of Golser v Golser, 115 AD2d 695, 698 [2d Dept 1985]; Matter of O'Brien v O'Brien, 4 AD2d 946, 946 [1st Dept 1957]). When a parentage action is brought, the most effective method of overcoming the presumption of paternity is through genetic testing. Indeed, there is little question that a genetic test demonstrating non-paternity would meet the clear and convincing evidence standard to rebut the presumption of legitimacy. In each of the above-cited cases the blood test ordered would have settled the paternity question at issue.

Pursuant to FCA § 532 (a), when a paternity petition is filed, Family Court, “on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests.” However, this directive is qualified by an exception providing that “[n]o such test shall be ordered ․ upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman” (FCA § 532 [a]; see also FCA § 418 [a]).

The doctrine of equitable estoppel may be raised by a party to a paternity proceeding or the attorney for the child. It may be “used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced” (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 6 [2010]). “The 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” (Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). In Matter of Shondel J., the New York Court of Appeals observed that the doctrine is applied “as a matter of fairness” (Id.). Courts apply the defense “to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position” (id.; see also Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). The doctrine is based on public policy that children should be secure in knowing who their parents are. In other words, once a presumed father has held himself out as a child's father and they have formed a father-child relationship, that child should not be required to suffer the potentially damaging emotional trauma that may come from being told that the father she has known all her life is not, in fact, her father. In this context, New York courts generally impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship” (Matter of Baby Boy C., 84 NY2d 91, 102 [1994]; see also Matter of Shondel J. v Mark D., 7 NY3d at 327; Matter of Cecil R. v Rachel A., 102 AD3d 545, 546 [1st Dept 2013]).

An estoppel argument can be invoked “where the failure to promptly assert a right has given rise to circumstances rendering it inequitable to permit the exercise of that right” (Matter of John Robert P. v Vito C., 23 AD3d 659, 661 [2d Dept 2005]; Matter of Shondel J., 7 NY3d at 327). Application of the equitable estoppel doctrine requires only words or conduct amounting to a representation, reliance and prejudice; it does not require the “existence of fraud or an intent to deceive” (Matter of Rodriguez v Morales, 200 AD2d 406, 407 [1st Dept 1994]). Whether the doctrine applies “rests largely on the facts and circumstances of the particular case” (Matter of Ayer v Bd. of Education, 69 Misc 2d 696, 699 [Sup Ct, Monroe County 1973] [citation omitted]). “The paramount concern in applying equitable estoppel in [paternity] cases has been, and continues to be, the best interests of the child” (Matter of Shondel J. v Mark D., 7 NY3d at 326; see also Matter of Juanita A., 15 NY3d at 5; Matter of Merritt v Allen, 99 AD3d 1006, 1007 [2d Dept 2012]). Under the doctrine of equitable estoppel, a paternity dispute “does not involve the equities between [or among] the ․ adults; the case turns exclusively on the best interests of the child” (Matter of Shondel J., 7 NY3d at 330; accord Matter of Carlos O. v Maria G., 149 AD3d 945, 946 [2d Dept 2019]).

Mr. R., as the party raising the issue of equitable estoppel and seeking to estop Mr. S. from asserting fatherhood, has the initial burden of establishing a prima facie case sufficient to support his position (see Matter of Richard W. v Roberta Y., 240 AD2d 812, 815 [3d Dept 1997], lv denied 90 NY2d 809 [1997]; Matter of Sharon GG v Duane HH, 95 AD2d 466, 468 [3d Dept 1983]). The burden then shifts to Mr. S., as the non-moving party, to submit evidence that it is in the best interests of the child to not dismiss his paternity petition. The credibility of the petitioner and other witnesses, as well, “is of paramount importance” in weighing the evidence by the standard of clear and convincing proof (Matter of Sandra S. v Larry W., 175 Misc 2d 122, 125 [Fam Ct, Bronx County 1997]).

In determining whether Mr. R. has met his burden, the Court must consider such factors as “the child's interest in knowing with certainty the identity of [her] biological father, whether the identity of others who could be proven to be [her] father is known or likely to be discovered, the traumatic effect the testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered” (Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1134 [3d Dept 2006]). This list of factors, however, is not exhaustive; the Court may also give consideration to whether the child's family image would be destroyed; whether she would suffer any physical or emotional harm as a result of identifying a third person as a parent and a significant disruption to the stability of the current family unit (see Matter of Anthony M., 271 AD2d 709, 711 [3d Dept 2000]; Prowda v Wilner, 217 AD2d 287, 289 [1st Dept 1995]).

The Court has considered the following factors, among others, that affect Jocelyn's best interests: (1) the nature and extent of the existing parent—child relationship; (2) the stability of the child's home environment and whether the child's family image would be destroyed; (3) the timing of the allegation of non-paternity and (4) whether Jocelyn would be psychologically harmed or traumatized by the disruption of the bond she has with Mr. R.

Both parties raise several arguments relevant to this proceeding. Mr. R. contends that all three elements of equitable estoppel have been proven by the uncontradicted evidence. He asserts that Ms. B.'s false representations, coupled with Mr. S.'s timely failure to timely assert his paternity, which was on-going from Ms. B.'s pregnancy until Jocelyn was nine years old, caused him to believe he was Jocelyn's father, resulting in their on-going deep emotional ties with each other. He further asserts that breaking those ties is harmful to Jocelyn as he is the only real father that the child has known. He is recorded as her father on her birth certificate; he was present at her birth; he has been fully committed to acting as her father until she was nine years old; and during that time, he provided for her emotional and physical needs. Mr. R., as well, maintains that he and his wife never intended that petitioner could be a parent to the child, even if there was some amount of contact between Mr. S. and Jocelyn after her birth. He believes that it is important for the Court to recognize the importance in Jocelyn's life of a “psychological father” who has provided for her physical and emotional nurturance. In effect, he insists that Jocelyn still thinks of herself as his daughter despite knowing that he may not be her biological father. Based on these arguments, the Court finds that Mr. R. has satisfied his burden to support invoking equitable estoppel.

The burden then shifts to Mr. S. to demonstrate that it is in Jocelyn's best interests to go forward with his paternity petition. Mr. S. asserts that no evidence was presented that he acquiesced to the possible fiction that Mr. R. is Jocelyn's father, and to the establishment of a parent-child bond between Jocelyn and Mr. R. Mr. S. also argues that he filed a paternity petition in 2007, and that this act is evidence that he took some prompt action to assert his parental rights. More importantly, Mr. S. asserts that he has formulated a parental relationship with Jocelyn. It is his position that he has acted as the child's father based upon evidence of his continued contact with Jocelyn through visits, gifts and financial support (see Matter of Damien v J.G., 39 Misc 3d 243, 252 [Fam Ct, Monroe County 2012]). Additionally, Mr. S. contends that equitable estoppel is inapplicable to the facts of this case as Jocelyn already knows he is her biological father, and therefore, there should be no concern over a deleterious impact from a judicial determination to that effect (Id.).

An important factor that the Court considered in determining the best interest of the child was the reasonable preference of Jocelyn who at her age can clearly express her opinion and preference. “[I]t is the child's reliance upon a representation of paternity that is to be considered” (see Matter of Dustin G. v Melissa I., 69 AD3d 1019, 1020 [3d Dept 2010]). In this case, Jocelyn is now 13 years old. She relies on the affection and care from three persons whom she calls her fathers. In various court appearances and particularly, in this hearing, it has been admitted that Jocelyn calls Mr. R., the first man that she identifies as her father “Daddy”; she acknowledges Mr. S. as her second father; and her third father is her current foster parent, Mr. B.

This case concerns both a difficult and unusual situation. Here, the “Pandora's box” that held the secret of Mr. R.' possible non-paternity was open before any of the parties appeared in court. By their actions throughout her life, both Mr. B. and Mr. S. have remained present in Jocelyn's life. As evidenced in the parties' testimony and photographs that Mr. S. entered into evidence, it is clear that he visited frequently with Jocelyn from the time of her birth, participated in her birthday and other events, and took her on outings to visit with his family. It is also clear that Mr. S. always held himself out to Jocelyn as her biological father, and that she believed he could be her biological father. None of the parties dispute that Jocelyn was aware that Mr. S. could be her biological father. Notwithstanding these facts, Jocelyn does not want to live with Mr. S. if he is her biological father. She does, however, wants to know the identity of her biological father.

The Court finds that Mr. S.'s occasionally buying Jocelyn small gifts or providing some monies for her financial support are insufficient to show his assumption of parental responsibility, as was his failure to assert parental rights either at Jocelyn's birth or in 2007 when he filed his first paternity petition, and these issues could have been addressed earlier. Nonetheless, it has been implicit in this proceeding that the adult parties all acted over a number of years as though Mr. S. is the subject child's biological father with certain rights of fatherhood, even though Mr. R. was Jocelyn's “day-to-day father.” That belief wherein Mr. S. is Jocelyn's biological father has been the basis permitting his past and current visitation with the subject child, the formation of a substantial relationship with Jocelyn, and being called “Daddy Joey” by Jocelyn. She recognizes that Mr. S. could be her biological father and has informed her attorney that she wishes him to undergo genetic testing. Jocelyn seeks to continue a relationship with Mr. S. if he is her biological father. She, however, does not want to live with him. Jocelyn prefers to remain with her current foster father, and have access to both Mr. R. and Mr. S.

This Court weighed whether the existence of an operative parent-child relationship would be disturbed by the establishment of petitioner's paternity. There is no longer an intact family or a marriage to preserve as Mr. R. and Ms. B. have been separated for a number of years, and respondent mother has formed another relationship with the father of her twin children who were also in foster care at the time the hearing began. There are, however, both advantages and disadvantages to granting Mr. S's application. Nonetheless, the ultimate and overriding consideration must be Jocelyn's best interests, rather than the longevity of parental relationships.

The Court finds that Mr. S., by clear and convincing evidence, has demonstrated that it would be in Jocelyn's best interest to know with certainty the identity of her biological father, and to continue her relationship with him (see Matter of Seth P. v Margaret D., 90AD3d 1053, 1054 [2d Dept 2011]). The Court is aware that children benefit psychologically, socially and educationally from predictable parental relationships. In this case, however, Jocelyn is barely in an operative parent-child relationship with Mr. R. who has failed to take affirmative steps to act on his parental responsibilities and plan for Jocelyn's future. She has remained in foster care for almost five years, and he has retreated from his intention to care for her and treat her as his daughter. Mr. R. now lives in Alabama, and he has failed to visit with Jocelyn in New York City for several years or to comply with his ACS service plan. Nonetheless, the Court acknowledges that he continues to have sporadic telephone contact with her which she or her foster father initiate. On these facts, the Court finds that Mr. R. has failed to establish that a genetic blood test would disturb the relationship Jocelyn may have with any other father figure including himself (see Matter of Ruby M.M. v Moses K., 18 AD3d 471, 472 [2d Dept 2007]).

Considering Jocelyn's age and maturity, and the attorney for the child's indication that she has an interest in knowing with certainty who is her biological father, as well as the absence of any evidence that Jocelyn would suffer irreparable loss of status, disruption of her family image or any other harm to her emotional or physical well-being if genetic DNA testing is permitted, the Court concludes that genetic DNA testing is in the child's best interests (see Matter of Patrick A. v Rochelle B., 135 AD3d 1025, 1026 [3d Dept 2016], lv dismissed 27 NY3d 957 [2016]; Matter of Sidney W. v Chanta J., 112 AD3d 950, 953-954 [2d Dept 2013]).

Jocelyn's right to financial support and benefits from her genetic father, and the right to know his medical history further override the equitable estoppel defense. Since Mr. R. has failed to show that he is entitled to the dismissal of the paternity petition based on equitable estoppel, his application to preclude genetic testing is denied.

CONCLUSION

Petitioner asserts that he is the subject child's father, thereby challenging the ultimate issue of the child's paternity. He is seeking an order granting DNA testing or an order of filiation. Respondent marital father opposes his application, arguing that Mr. S. is estopped from bringing this paternity action. The doctrine of equitable estoppel is based on fairness (see Matter of Shondel J., 7 NY3d at 326), and the best interests of the child.

This Court is hard pressed to discern the negative impact of permitting genetic marker testing or DNA testing to go forward or formally identifying Mr. S. as Jocelyn's father. While this Court recognizes the significance of equitable estoppel in paternity cases, there is no persuasive basis, based on the child's best interests and the facts of this case, to apply the doctrine here. The Court concludes that there is simply no beneficial parent-child relationship requiring estoppel protection.

Having examined the evidence at the hearing, the applicable law and the child's wishes, the Court concludes it is not in Jocelyn's best interests for Mr. S. to be equitably estopped from proceeding with his paternity petition. Therefore, the Court finds that under the circumstances and facts of this case, petitioner is entitled to a genetic marker or DNA test, and if he is found to be Jocelyn's biological father as a result of that test, an order of filiation should be entered.

Accordingly, it is hereby

ORDERED that the equitable estoppel motion made by respondent Leroy R. to prevent petitioner Joseph S. from undergoing genetic marker tests or DNA tests is denied; and it is further

ORDERED that Mr. S.'s paternity petition shall not be dismissed; and it is further

ORDERED that Mr. S., Ms. B. and the subject child shall make themselves available for the genetic marker or DNA test to be paid for by the City of New York; and it is further

ORDERED that Mr. S.'s genetic marker test or DNA test results shall be disclosed to the parties.

FOOTNOTES

1.   Deoxyribonucleic acid, or DNA, is the genetic material inherited from one's mother and father. A DNA paternity test uses DNA, usually taken from a cheek swab, to determine whether a man is the child's biological father. DNA paternity tests are extremely accurate. A test can show with 99.9% accuracy if a man is a person's biological father (DNA Paternity Test: Definition and Types, https://my.clevelandclinic.org/health/diagnostics/10119-dna-paternity-test [accessed August 10, 2021]).

2.   Ms. B. was previously adjudicated to have neglected the subject children, Jaheim and Jaquell on 8/3/06 in Bronx Family Court under Docket Nos. NN-01702-06 and NN-02405-06. Both Ms. B. and Mr. R. were adjudicated by this Court to have neglected Jacob, Justin, Jaquell, Jocelyn, Janasta and Jaheim under Docket Nos. NN-10294-99/15 on 10/22/15. The remaining 2016 Docket No. NN-20376-83/16 and 2017 Docket No. NA-9049-56/17 now proceed before another judge.

3.   Mr. R. was the legal father of the twins until February 2017 when paternity tests established that another man was the biological father of Jayda and Jaden.

4.   The Kinship Guardianship Assistance Program (KinGAP) is designed for a foster child to achieve a permanent placement with a committed adult who had been the child's foster parent for at least six months. This program provides financial support and, in most cases, medical coverage for the child, beginning with the child's discharge from foster care to the guardian. The level of financial support is like the maintenance payments received while the child was in foster care. The foster child must have a strong attachment to the prospective guardian. The child must be consulted if age 14 or over. If age appropriate, younger children should be consulted as well. The child must consent if age 18 or over. The foster child does not have to be free for adoption for Kinship Guardianship Assistance to be provided. However, both “return home” and “adoption” must be ruled out as permanency options for the child (KinGAP Background and Process, https://www.ocfs.ny.gov/programs/kinship/background-and-process.php [accessed August 10, 2021]).

5.   In the absence of an established inability to appear or genuine necessity, Mr. R voluntarily absented himself from the paternity and neglect proceedings by leaving the territorial jurisdiction of New York state to Alabama. On March 23, 2018, the Court was informed, by his attorney, that he was now living in Alabama. She sought to dispense with his personal appearance before the Court, and requested authorization for Mr. R. to appear and participate in the proceeding by telephone. The Court denied the application because its ability to determine the credibility of Mr. R. who would be testifying by telephone would be compromised (see e.g. FCA § 433; Matter of Neahiah Harry-Ray M., 127 AD3d 409, 410 [1st Dept 2015]; Matter of Kalantarov v Kalantarov, 109 AD3d 471, 471 [2d Dept 2013]). His attorney continued to actively participate in the hearing on his behalf.

Alma M. Gómez, J.