TROY VG v. TYSHA McG (2010)

Order, Family Court, Bronx County (Andrea Masley, J.), entered on or about July 8, 2009, which denied the petition insofar as it sought to vacate the acknowledgment of paternity of the child, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a new hearing before a different judge.

Petitioner testified, and it appears to be undisputed, that when the child was approximately three years old, the child would cry during visits with petitioner and say that petitioner was not his father. According to petitioner, his relationship with the child appeared to be “going backward” and the child indicated he did not want to be with petitioner. Under all the relevant circumstances, Family Court erred in determining that the question of equitable estoppel could be resolved without a psychiatric evaluation of the parties and the child (Matter of Eugene F.G. v. Darla D., 261 A.D.2d 958, 959 [1999] ). Moreover, Family Court should not have precluded cross-examination of respondent mother with respect to the child's living situation at the time of the hearing, particularly as the question of whether another person was acting as a father clearly is relevant to the ultimate issue of the best interests of the child (Matter of Shondel J. v. Mark D., 7 NY3d 320, 326 [2006] ).