IN RE: a Proceeding pursuant to Article 5 of the Family Court Act C.M. (2007)

This matter was referred to this Court by the Support Magistrate for determination as to whether the Petitioner may invoke the doctrine of equitable estoppel to deny Respondent's request for genetic testing in this paternity proceeding.

Upon the initial appearance of the parties, this Court assigned the Nassau County Legal Aid Society to represent the Respondent and “18-b” counsel to represent the Petitioner.   The Support Magistrate assigned a Law Guardian prior to the referral to this Court.   This Court then established a schedule for submission of papers on the issue of equitable estoppel.

The Court has reviewed the procedural history of this matter.   On or about September 5, 2006, the Petitioner filed two petitions, under docket numbers P-and P-, requesting that orders be made declaring the Respondent to be the father of the children, D.A., born December 20, 1999 and R.V., born November 14, 1998, and for orders of support.

The parties appeared for conference before the Support Magistrate on October 11, 2006, when the Respondent requested genetic testing be conducted before admitting to paternity of the children.   The Court file reflects that the Respondent told the Support Magistrate that, although the children refer to him as “dad,” he is requesting genetic testing because he would “like to be sure.”   The Support Magistrate then assigned a Law Guardian, and the matter was adjourned for further proceedings.

On the adjourned date of November 29, 2006, the Court file shows that the Law Guardian advised the Support Magistrate that the children recognize the Respondent to be their father and that the Respondent spent holidays with them.   The Respondent renewed his request for genetic testing before admitting to paternity.   The matter was referred to this Court for determination as to whether the Petitioner could invoke the doctrine of equitable estoppel to prevent Respondent's request for genetic testing.

The Court then set a schedule for submission of papers on this issue.   The Petitioner filed a Notice of Motion on or about January 16, 2007, requesting that an Order be made “estopping” the Respondent, pursuant to Family Court Act (“FCA”) section 418(a), from obtaining genetic testing to disprove paternity of the children.   The Law Guardian filed an affirmation on or about February 5, 2007, arguing against genetic testing.   On or about February 6, 2007, the Respondent filed an affirmation in opposition to Petitioner's motion to preclude genetic testing.   The Petitioner filed a reply affidavit on or about February 16, 2007.

 The doctrine of equitable estoppel is invoked to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought.  Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265 (1982).

The Family Court Act provides that in a paternity matter, the Court may not order genetic testing without first issuing a written finding that it is not in the best interests of the child on the basis of equitable estoppel.   FCA section 418(a).

 The paramount concern in an equitable estoppel case is the best interests of the children.   See In the Matter of Louise P. v. Thomas R., 223 A.D.2d 592, 636 N.Y.S.2d 408 (2nd Dept.1996), Jean Maby H. v. Joseph H., 246 A.D.2d 282, 676 N.Y.S.2d 677 (2nd Dept.1998), In the Matter of Willie Griffin v. Cynthia Marshall, 294 A.D.2d 438, 742 N.Y.S.2d 116 (2nd Dept.2002) and In the Matter of Greg S. v. Keri C., 38 A.D.3d 905, 832 N.Y.S.2d 652 (2nd Dept.2007) The evidence should be construed from the child's perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing include the child's interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or 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.  In the Matter of Gutierrez v. Gutierrez-Delgado, 33 A.D.3d 1133, 1134, 823 N.Y.S.2d 248 (3rd Dept.2006).

 Equitable estoppel may be raised as a defense to preclude a party from being compelled to submit to genetic testing.   See Lorie F. v. Raymond F., 239 A.D.2d 659, 657 N.Y.S.2d 235 (3rd Dept.1997).   However, the moving party bears the burden to show by clear and convincing evidence that he/she is entitled to invoke the doctrine of equitable estoppel.   See Sandra S. v. Larry W., 175 Misc.2d 122, 667 N.Y.S.2d 632 (Fam.Ct. of New York, Bronx Cty., 1997), M.S. v. K.T., 177 Misc.2d 772, 676 N.Y.S.2d 898 (Fam.Ct. of New York, Rockland Cty., 1998), In the Matter of Commissioner of Social Services, o/b/o R.B. v. W.L., 9 Misc.3d 973, 804 N.Y.S.2d 634 (Fam.Ct. of New York, Nassau Cty., 2005, Lawrence, J.), 57 N.Y. Jur. Estoppel, Ratification, and Waiver, section 72.

 Here, the Petitioner is requesting that this Court issue an order “estopping” genetic testing.   The Petitioner's moving papers allege that Respondent resided with her and the children between 1997 and 2004 when Respondent was “thrown out” of the home by Petitioner due to his “disorderly conduct”;  Respondent was present at the hospital when each child was born;  Respondent spent the last two Christmases with the children;  although Respondent would not execute acknowledgments of paternity for the children, he is their “biological” father;  the Respondent has always “held himself out” to be the children's father;  no other man has been in the children's lives;  Respondent objects to being adjudicated the father because he does not want to pay child support;  and the children would be devastated if told the Respondent is not their “biological” father.

 The Petitioner must submit evidentiary proof in admissible form, in order to set forth, prima facie, her entitlement to the relief she seeks.   See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980).   If the Petitioner fails to make a prima facie showing of her entitlement to invoke the doctrine of equitable estoppel, then the motion must be denied.   See Arma Textile Printers v. Spectrachem, Inc., 254 A.D.2d 382, 679 N.Y.S.2d 91 (2nd Dept.1998).   When the moving party does not make such a prima facie showing, he/she is not entitled to a hearing.   See Mobley v. Ishmael, 285 A.D.2d 648, 729 N.Y.S.2d 154 (2nd Dept.2001), Glenn T. v. Donna U., 226 A.D.2d 803, 640 N.Y.S.2d 297 (3rd Dept.1996).

 This Court is not convinced by Petitioner's arguments that she is entitled to invoke the doctrine of equitable estoppel.   Petitioner's unsubstantiated allegations and mere conclusions do not make a prima facie showing that equitable estoppel applies to this matter.   The Petitioner has not sufficiently pled the required elements of estoppel, which are conduct, reliance and harm.   See In the Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326, 820 N.Y.S.2d 199, 853 N.E.2d 610 (2006).

Turning now to the Law Guardian's affirmation, the Law Guardian argues that it would not be in the best interests of the children to “open the issue of their paternity”.   The Law Guardian contends that the Respondent has “held himself out” as the children's father.   The Law Guardian states that the children identify the Respondent as their father, they have visitations with him, which occur at least ten times per year, they can recount Christmas presents given to them by Respondent, and know Respondent's other children to be their “siblings”.

These statements lack an evidentiary foundation.   The Law Guardian does not provide detail for these visitations.   The Court does not know if these visitations last for five minutes, five hours or five days.   This Court does not know what kind of relationship, if any, these children have, if any, with the Respondent.   The Law Guardian does not specify the relationship these children have with the Respondent's children.   This Court must construe this issue from the children's perspective and must assess the impact of this proceeding on the children.   However, the Court cannot do this because the Law Guardian has not provided the Court with sufficient information.   See Matter of Louise P. v. Thomas R., 223 A.D.2d 592, 636 N.Y.S.2d 408 (2nd Dept.1996).

Although the Court need not address Respondent's claims after finding the moving papers and Law Guardian's papers insufficient, it will, nevertheless, address the Respondent's contentions.

The Respondent alleges that equitable estoppel does not apply in this case for several reasons.   Respondent first directs the Court's attention to documents which list other men as the children's fathers.   These documents, which are made part of the Respondent's papers as exhibits, are photocopied “appointment notices” from the Queens County Office of Child Support Enforcement, Long Island City, New York. These notices request that the Petitioner appear at their office on February 3, 2003 for an interview regarding an “absent parent”.   A “D.W.” is listed as the “absent parent” of the child, R, and “C.D.” is listed as the “absent parent” of the child, D.

Respondent further contends that neither child bears his last name, he did not execute acknowledgments of paternity for either child, he has been told Petitioner had other “male visitors” while he resided with her, and Petitioner would not allow him to claim the children for tax purposes.   Respondent states that it is in the children's “best interests” for them to know their “biological” father, as he has “reservations” as to their paternity.

This Court has not made a determination as to the whether equitable estoppel applies here, but has instead found that the moving papers and the Law Guardian's papers are insufficient.   Without ruling on the issue of equitable estoppel, the Court finds that the Respondent's arguments are also factually insufficient.   Bare contentions do not show fraud, as the Respondent claims.   These allegations are not “evidence” of anything;  Respondent's allegations are unsubstantiated conclusions.   Interestingly, Respondent's papers do not deny that he had or has a relationship with the children, that he has lived with them, or that they recognize him to be their father.

Accordingly, in light of the insufficiencies of these papers, the Petitioner's application to invoke the doctrine of equitable estoppel, to deny the Respondent's request for genetic testing, is denied.   The Petitioner has not made a prima facie showing in her papers that she is entitled to the relief that she has requested.   This matter is therefore referred to the Support Magistrate for further proceedings.

This Constitutes the Decision and Order of this Court.

RICHARD S. LAWRENCE, J.