Thursday, April 27, 2017


Zhu v. Pan, 2017 NY Slip Op 50468 - NY: Supreme Court 2017:

"The presumption that a child born during marriage is the biological product of the union is "one of the strongest and most persuasive known to the law" (Matter of Findlay, 253 NY 1, 7 [1930]; see Walker v Covington, 287 AD2d 572 [2d Dept 2001]; Fung v Fung, 238 AD2d 375, 375-376 [2d Dept 1997]). 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" (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 (Findlay, 253 NY at 7). Hence, the presumption prevails "unless common sense and reason are outraged by a holding it abides" (id.; see Constance G, 119 AD2d at 211). Clear and convincing evidence which excludes the husband as the father or otherwise tends to disprove the legitimacy of the child rebuts the presumption of legitimacy (see Walker, 287 AD2d at 572; Fung, 238 AD2d at 375-376). Where the presumption is rebutted, the court has authority to order a paternity test (see id. at 572-573; Fung, 238 AD2d at 376). Regardless, a party may invoke equitable estoppel as a defense to preclude the test (see id.; Fung, 238 AD2d at 376).

Equitable estoppel prohibits a person from asserting a claim that would prejudice another where he has led that other person to reasonably believe that he would not do so (see Juanita A v Kenneth Mark N, 15 NY3d 1, 5 [2010], citing Shondel J v Mark D, 7 NY3d 320, 326 [2006]). The law imposes equitable estoppel as a matter of fairness (see id.). Thus, where a man represents himself to be a child's father and it serves the child's best interests, equitable estoppel prevents him from denying paternity (see id., citing Shondel J, 7 NY3d at 326; see also Derrick H v Martha J, 82 AD3d 1236, 1238 [2d Dept 2011]). Equitable estoppel thereby protects "the status interests of a child in an already recognized and operative parent child relationship" (Shondel J, 7 NY3d at 327). The paramount concern is the best interests of the child (see Derrick H, 82 AD3d at 1238; Walker, 287 AD2d at 572-573; Fung, 238 AD2d 376).
A husband must overcome the presumption of legitimacy as well as equitable estoppel to obtain a paternity test of a child born during marriage. Mere proof that the wife engaged in adultery is insufficient to rebut the presumption (see Constance G, 119 AD2d at 211). Indeed, where "husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer" (Findlay, 253 NY at 8). Proof of the wife's adultery in conjunction with conclusive proof of the husband's nonaccess (see Family Ct Act § 531), however, will suffice to rebut the presumption (see Constance G, 119 AD2d at 211 [evidence of "recurrent acts of intercourse" between the wife and another man coupled with "corroborated and unshaken proof negating access" by the husband refuted the presumption]).

Where the husband rebuts the presumption of legitimacy and has no relationship with the child, equitable estoppel will not preclude a paternity test (see Michaleas v Michaleas, 136 AD3d 616 [2d Dept 2016]). For example, where uncontroverted evidence established that the wife had been in a sexual relationship with another man during the time that the three-year-old child was conceived; that the wife told the husband he was not the father; and that the husband had no relationship with the child, equitable estoppel did not bar genetic testing (id.). Similarly, where the husband filed for divorce shortly after learning of his pregnant wife's adulterous affairs and immediately disavowed paternity of the child, equitable estoppel should not have prevented a blood test (Murtagh v Murtagh, 217 AD2d 538, 539 [2d Dept 1995]).

On the other hand, the husband's unsubstantiated claims that his wife had committed adultery and repeatedly told him that he was not the child's father failed to rebut the presumption of legitimacy (Fung, 238 AD2d at 376). Moreover, because the husband was listed on the birth certificate, "consistently held himself out as the child's father," and waited almost a year and a half before challenging paternity[2], he was equitably estopped from doing so (id.). Indeed, it was not in the child's best interests to order a blood test which "would have the potential to brand the child illegitimate without settling the issue of paternity" (id.). Comparably, in light of the presumption of legitimacy, and where the husband's surname was on the child's birth certificate; the child was registered in school under that name; and the husband waited four years to contest paternity, his paternity petition was properly dismissed under equitable estoppel (David L v Cindy Pearl L, 208 AD2d 502, 504 [2d Dept 1994]).

Here, Defendant presented no evidence that Plaintiff engaged in sexual intercourse with anyone other than himself during the time that L.P. was conceived. Moreover, Defendant consistently presented himself as L.P.'s father in a myriad of ways. L.P.'s birth certificate identifies Defendant as his father. Defendant declared L.P. as his dependent on his federal income tax returns. Defendant refers to L.P. as the "most beautiful son in the world" on his affidavit in support of Plaintiff's application for lawful permanent residency. Defendant identifies L.P. as his child on his net worth statement. Defendant lived with Plaintiff and L.P. as a family for almost two years before L.P. went to live in China. During that time, they went on outings, took vacation and posed for family pictures. Moreover, most recently, Defendant moved the court to order Plaintiff to have L.P. returned to New York and to allow Defendant to visit with him.
Consequently, Defendant has failed to rebut the presumption that L.P. is his legitimate child. In any event, he is equitably estopped from denying paternity. Regardless of whether or why it was interrupted, Defendant established a parent-child relationship with L.P., which is in the child's best interests to protect. Specifically, it would not benefit L.P. to order a genetic test which could brand him as illegitimate without resolving his paternity (see Fung, 238 AD2d at 476). Accordingly, Defendant's motion for a paternity test is denied.

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