IN RE: Angelo A.R. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Angelo A.R. (Anonymous), appellant, v. Tenisha N.W. (Anonymous), respondent.

2012–08724 (Docket No. F–933–11)

Decided: July 03, 2013

MARK C. DILLON, J.P. DANIEL D. ANGIOLILLO THOMAS A. DICKERSON JEFFREY A. COHEN, JJ. Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for appellant. Verna W. Cobb, Newburgh, N.Y., for respondent. Jessica Bacal, P.C., Katonah, N.Y., attorney for the child.

Submitted—May 28, 2013

DECISION & ORDER

In a proceeding pursuant to Family Court Act § 516–a to vacate an acknowledgment of paternity, the petitioner appeals from an order of the Family Court, Orange County (Klein, J.), dated August 6, 2012, which, after a hearing, denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, without costs or disbursements.

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516–a[b][ii] ).   If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child's best interests, from challenging paternity (see Family Ct Act § 516–a[b][ii];  Matter of Derrick H. v. Martha J., 82 AD3d 1236, 1237;  Matter of Darlene L.-B. v. Claudio B., 27 AD3d 564, 564–565).   If the court concludes that estoppel is not warranted, the court is required to order genetic marker tests or DNA tests for the determination of paternity, and to vacate the acknowledgment of paternity in the event that the individual who executed the document is not the child's father (see Family Ct Act § 516–a [b][ii];  Matter of Derrick H. v. Martha J., 82 AD3d at 1237;  Matter of Darlene L.-B. v. Claudio B., 27 AD3d at 564–565).

Here, there is no dispute that the petitioner executed the acknowledgment of paternity based upon a material mistake of fact.   Contrary to the petitioner's contention, however, the Family Court providently exercised its discretion in concluding that, nonetheless, he was equitably estopped from denying his paternity of the subject child, Ellianna R. The purpose of equitable estoppel “is 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” (Matter of Shondel J. v. Mark D., 7 NY3d 320, 326).   Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity,” in light of the child's justifiable reliance upon such representations, and the resulting harm that his denial of paternity would engender (id. at 327;  see Matter of Derrick H. v. Martha J., 82 AD3d at 1238).  “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” (Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 5 [internal citation and quotation marks omitted];  see Matter of Derrick H. v. Martha J., 82 AD3d at 1238).   In all cases, “the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the child” (Matter of Charles v. Charles, 296 A.D.2d 547, 549;  see Matter of Juanita A. v. Kenneth Mark N., 15 NY3d at 5;  Matter of Shondel J. v. Mark D., 7 NY3d at 326;  Matter of Derrick H. v. Martha J., 82 AD3d at 1238).

Here, the hearing evidence demonstrated that the petitioner and Ellianna R., who was almost three years old at the time of the hearing, lived in the same household together with the child's mother and two older sisters for at least six months, before the petitioner and the mother separated.   After the couple separated, the petitioner had overnight weekend visits with Ellianna R. and her older siblings at least once a month for nearly two years.   At all relevant times the petitioner held himself out as Ellianna R.'s father, and she recognized him as such.   Under these circumstances, the Family Court properly determined that the petitioner was equitably estopped from denying paternity of Ellianna R., as there had been a “recognized and operative parent-child relationship” in existence for nearly three years (Matter of Juanita A. v. Kenneth Mark N., 15 NY3d at 5;  see Shondel J. v. Mark D., 7 NY3d at 328, 331–332;  Smythe v. Worley, 72 AD3d at 979;  cf.  Matter of Felix O. v. Janette M., 89 AD3d 1089, 1090–1091;  Matter of Derrick H. v. Martha J., 82 AD3d at 1239;  Matter of Ellis v. Griffin, 308 A.D.2d 449, 450).

DILLON, J.P., ANGIOLILLO, DICKERSON and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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