VACATING AN ACKNOWLEDGEMENT OF PARENTAGE ON MUTUAL MISTAKE

I

n this case, to set aside an acknowledgment of parentage, more than oral testimony is needed if the grounds are mutual mistake. "Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv)

Carla A N-N v. Steven J U-G, Date filed: 2024-10-03, Court: Family Court, Queens, Judge: Support Magistrate Sandra Stines, Case Number: 221356:

"FINDINGS of FACT Support Magistrate Sandra Stines, makes the following decision/ findings of fact after trial: Procedural history

On March 14, 2024 Carla A N-N, Petitioner (hereinafter Ms. N-N) filed a “petition to vacate acknowledgment of parentage” against Steven J U-G, Respondent (hereinafter Mr. U-G). See, Petition to Vacate Acknowledgment of Parentage, Queens County Family Court Docket P-06147-24.

On October 1, 2024, Ms. N-N and Mr. U-G appeared (both waiving counsel) for trial. The Court heard their testimony. At the close of proof decision was reserved.

Evidence

Testimony

Ms. N-N’s testimony

Ms. N-N testified “when I signed the acknowledgment of parentage I believed that Mr. U-G was the father”. At the time of birth, “we both decided to not take the dna test and sign the acknowledgment of parentage”. She “assumed that Mr. U-G was the father” of the child until she had the child take a “dna test” in January 2023 that showed he is not. Ms. N-N “did the dna test for some documents I wanted to take for my daughter”.

Mr. U-G testimony

Mr. U-G testified “I assumed I was the father at the time I signed the acknowledgement of parentage”. Mr. U-G lived with Ms. N-N and subject child for two years but after he took “the dna test” he stopped living or visiting the child because the “dna test” showed he is not the biological father of the child. Mr. U-G has not had contact with the child since last year.

Documentary evidence

Court exhibit 1 Acknowledgment of parentage

Ms. N-N presented two documents for evidence she purported to be dna tests but they were not admitted in evidence because they are hearsay.

Discussion

An acknowledgment of parentage establishes the parentage of and liability for the support of a child. Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv). Additionally an acknowledgment of parentage is void if, at the time of signing, any of the following are true: (i) a person other than the signatories is a presumed parent of the child pursuant to section twenty-four of the domestic relations law; (ii) a court has entered a judgment of parentage of the child; (iii) another person has signed a valid acknowledgment of parentage with regard to the child; (iv) the child has a parent pursuant to section 581-303 of the family court act other than the signatories; (v) a signatory is a gamete donor under section 581-302 of the family court act; or (vi) the acknowledgment is signed by a person who asserts that they are a parent under section 581-303 of the family court act of a child conceived through assisted reproduction, but the child was not conceived through assisted reproduction. Family Ct Act §516-a (c) (i)-(vi).

A hearing is required to determine fraud, duress, or material mistake of fact. Matter of Andrew E. v. Angela N.S. 165 A.D.3d 658, 85 N.Y.S. 3d 115 (2d Dept 2018); Family Ct Act §516-a (b)(iv)). This petition alleged “sixty days have elapsed since the signing of the acknowledgement of parentage. The following fraud duress or material mistake of fact has occurred (specify) the respondent is not the biological father but signed the parentage at (child’s name) time of birth. I, the mother assumed that my ex-partner for 3 years was her biological father. We never had a dna test done until later.” At fact-finding Ms. N-N clarified that it was Mr. U-G who she referred to as her ex-partner of 3 years in her petition.

Fraud, requires showing that a person justifiably relied on the other party’s fraudulent statements or representations at the time they signed the acknowledgment of parentage. Matter of Joshua AA. v. Jessica BB., 132 AD3d 1107, 1108, 19 N.Y.S.3d 116 (3d Dept. 2015). Here, neither party alleged that the other made fraudulent statements when signing the acknowledgment of paternity.

Duress requires a showing that a party “was forced to agree to [sign the acknowledgment] by means of a wrongful threat which precluded the exercise of [her] free will’”. Matter of Jeannette GG. v. Lamont HH 77 A.D.3d 1076, 909 N.Y.S. 2d 222 (3d Dept 2010). No such duress was presented herein.

Matter of Wimberly v. Diabo 42 A.D.3d 599, 839 N.Y.S. 2d 822 (3d Dept 2007) addressed mistake of fact to vacate an acknowledgement of parentage where a Respondent alleged he only signed an acknowledgement of parentage because he believed it was necessary to obtain benefits. Relying on principles of contract law the Diabo court held that for mistake of fact, that mistaken fact must be truly material — i.e., substantial and fundamental to the nature of the contract — so as to entitle a party to void that document. Id. Diabo found no mistake of fact to vacate the acknowledgment of parentage. An acknowledgment of parentage is indeed a contract, “generally, a contract entered into under a mutual mistake of fact is voidable and subject to rescission” because it “does not represent the ‘meeting of the minds’ of the parties”. Jerome M. Eisenberg, Inc. v. Hall 48 NYS 3d 71; 147 A.D.3d 602 (1st Dept 2017) (Matter of Gould v. Board of Educ. of Sewanhaka Cent. High School Dist.,81 NY2d 446, 453, 616 NE2d 142, 599 NYS2d 787 [1993]). In order to justify rescission, “[t]he mutual mistake must exist at the time the contract is entered into and must be substantial” (id.). See also, Carney v. Carozza 16 A.D.3d 867, 792 NYS 2d 642 (3d Dept 2005) (A contract or stipulation entered into under a mutual mistake of fact is subject to rescission if such mutual mistake existed at the time the contract was entered into and is so substantial that the agreement does not represent a true meeting of the parties’ minds.

At the time the acknowledgment of paternity here was signed Ms. N-N and Mr. U-G “assumed” i.e., believed that Mr. U-G was the father. Mr. U-G and Ms. N-N acted on that belief cohabitating as a family wherein Mr. U-G was the father. Two years after signing the acknowledgment of parentage, Mr. U-G and Ms. N-N allege their belief that Mr. U-G is the father was a mistake. To support that Ms. N-N submitted two documents which she purported were “dna” results. Those documents were not admitted because they were hearsay. The Guide to New York Evidence, (rule 8.00) (Hearsay is an out of court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement. The declarant of the statement is a person who is not a witness at the proceeding, or if the declarant is a witness, the witness uttered the statement when the witness was not testifying in the proceeding. A statement of the declarant may be written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion.), These documents did not meet hearsay exceptions including CPLR 4518 (a) (Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.) CPLR 4518 (d) is a hearsay exception for genetic marker or DNA. See, CPLR 4518(d) (Any records or reports relating to the administration and analysis of a genetic marker or DNA test, including records or reports of the costs of such tests, administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law are admissible in evidence under this rule and are prima facie evidence of the facts contained therein provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or the state or by an employee delegated for that purpose, or by a qualified physician. If such record or report relating to the administration and analysis of a genetic marker test or DNA test or tests administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law indicates at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall, if unrebutted, establish the paternity of and liability for the support of a child pursuant to articles four and five of the family court act). The documents Ms. N-N did not meet the exceptions in CPLR 4518(d).

Ms. N-N and Mr. U-G testified that they believe that Mr. U-G is not the father of the child herein and that belief is based on “dna test” results they saw. That testimony is hearsay, and their belief is not a fact. Ms. N-N did not present credible evidence that what she claims is a fact is actually a fact because Ms. N-N and Mr. U-G’s belief based on hearsay that now he is not the father is not a fact.

Ms. N-N did not prove that the acknowledgment of parentage was signed under fraud, duress, or due to a material mistake of fact.

Mr. U-G did not oppose the relief sought in Ms. N-N’s petition at the fact finding and at a court appearance on October 1, 2024 said he agreed to vacate the acknowledgement of parentage. But Mr. U-G’s non opposition at fact finding and statement on October 1, 2024 does not change that it is Ms. N-N ‘s burden to prove fraud, duress, or material mistake of fact to vacate the acknowledgment of paternity. Family Ct Act §516-a (b)(iv) Although principles of contract law apply to vacating acknowledgements of parentage, whether two parties to an acknowledgement of parentage agree to vacate same, unlike many contracts that may be vacated upon agreement, such agreement is not a basis for vacatur of acknowledgment of parentage.

Family Ct Act §516-a was enacted for the “timely and efficient establishment of paternity” (see legislative notes thereto). Were it that parties to acknowledgments of parentage did not have to prove fraud, duress, or material mistake of fact at the time the acknowledgments were signed but rather could change their mind based on agreement that would not be efficient and have far reaching effects on children, hence Family Ct Act §516-a (b)(iv). Furthermore every acknowledgment of parentage contains the following, “we understand that signing this acknowledgement of paternity is voluntary and will establish paternity of our child and have the same force and effect of an order of filiation determining paternity…. We have received written notice of our legal rights (including the time frames to withdraw responsibilities alternatives and the consequences of signing the acknowledgement of paternity and we understand what the notice states…we certify that the information we provide below is true”. Those statements were read to the parties on the record, and they acknowledged same. This reflects the intent of Family Ct Act §516-a and gravity of signing an acknowledgment of parentage.

Consistent with the statutory language, if a party fails to meet their burden of proof on the issue of fraud, duress, or material mistake of fact, the court need not order a genetic marker test to determine the child’s paternity. Matter of Mark A.M. v. Lesley R.S. 169 A.D.3d 1046, 92 N.Y.S.3d 902 (2d Dept 2019) (disagreeing with the Family Court’s vacatur of the acknowledgment of paternity, as the petitioner failed to prove that the acknowledgment of paternity was signed by reason of fraud, duress, or material mistake of fact) citing Matter of Westchester County Dept. of Social Servs. v. Robert W. R. 25 AD3d 62, 72, 803 NYS2d 672 (2d Dept 2005]).

Based on the afore-stated the petition herein is denied.

Dated: October 3, 2024"

MASSACHUSETTS LAW - NOTICE OF ADOPTION TO UNMARRIED FATHER WITH NO ORDER OF PATERNITY

Apparently, the father never sought a paternity order or any order for visitation, custody, etc. An interesting question came to me today: mother is expecting and wants to give it up for adoption and father objects. The best approach for unmarried fathers who believe that the mother may not acknowledge them on the birth certificate is to seek a paternity order ASAP.  

IN RE ADOPTION OF ARLENE, Mass: Appeals Court 2022:

"NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, XXXXX-XXXX; (617) 557-1030; SJCReporter@sjc.state.ma.us

ENGLANDER, J.

The putative father^[2] of Arlene (child) appeals from an adoption decree entered by the Probate and Family Court, which granted a petition for adoption filed by the child's mother and the mother's husband (the child's stepfather). The putative father did not receive notice of the adoption proceedings, and the adoption decree entered while the putative father's petition to establish paternity was pending in Alaska State court, where the mother and the child had lived before coming to Massachusetts. The putative father contends, and we agree, that in these circumstances the lack of notice deprived him of his due process rights under the United States Constitution. We therefore remand this matter for the father to be afforded the opportunity to prove his paternity and, if proved, for further proceedings on the merits of the adoption petition.

Background.

We summarize the findings of the Probate and Family Court judge, supplementing them with undisputed evidence in the record where necessary. The mother and the putative father met online in 2010, and eventually in person in April 2011. When they met, the mother had one child from a prior relationship and was also pregnant with another child. In June 2011, the mother and the putative father began residing together in Florida. In late 2012, the mother learned that she was pregnant with the child and told the putative father, "[W]e are pregnant." During the probable period of the child's conception, the mother and the putative father had engaged in sexual intercourse, and the putative father believed that they were in an exclusive relationship. They informed their families of the pregnancy and agreed that the child would have the putative father's last name.

The child was born in April 2013. The putative father was present at the child's birth, but his name was not listed on the child's birth certificate at the mother's request, because the birth certificates of her two other children did not have a father listed. The putative father believed that he would eventually be listed on all three children's birth certificates. The child did, however, have the putative father's surname listed as one of her middle names. Following the child's birth, the putative father continued to live with the mother and the child, provided the child with financial support, took her to doctors' appointments, and did activities with her (including reading books and coloring together). The mother listed the putative father as the child's emergency contact in November 2015. When the child learned to speak, she called the putative father "father" and his parents "grandmother" and "grandfather," respectively.

In 2017, when the child was approximately four years old, the parties moved to Alaska. At some point, the putative father's relationship with the mother ended, although the father did see the child a number of times while they were in Alaska. The putative father last saw the child in March 2018; thereafter, the mother did not allow him to visit the child. In April 2018, the mother and the child traveled from Alaska to Massachusetts. At the time the mother left, the putative father believed that the trip was temporary; however, the mother remained in Massachusetts with the child and eventually married her current husband.

Within weeks of the mother and the child leaving, on May 11, 2018, the putative father, while still in Alaska, filed a complaint to establish paternity and custody in Alaska Superior Court (Alaska paternity complaint), in which he requested a genetic marker test for the child. In June or July 2018, the father filed a parental responsibility claim form with the Massachusetts Department of Children and Families (DCF) pursuant to G. L. c. 210, § 4A,^[3] asserting that he was the child's father, receipt of which DCF confirmed in a letter dated July 30, 2018.

Meanwhile, on July 11, 2018, the mother and her husband filed a petition for adoption in the Massachusetts Probate and Family Court, together with a motion for waiver of notice to DCF, which motion was allowed. The petition for adoption was accompanied by an "Affidavit Disclosing Care or Custody Proceedings" (affidavit disclosing other proceedings), signed by the mother's husband on June 27, 2018, which averred that the husband had no knowledge "of other care or custody proceedings involving the [child] in Massachusetts or in any other state or country." Although the affidavit disclosing other proceedings was signed only by the mother's husband, it was accompanied by an "Affidavit of Petitioner for Adoption" that was signed by the mother and listed her as a copetitioner.

On August 14, 2018, the mother and her husband filed a "Motion to Waive Notice" in the Massachusetts adoption proceedings, which argued, among other things, that notice to the putative father was not required under G. L.c. 210, § 4.^[4] The motion did not inform the Probate and Family Court of the pending paternity action in Alaska.^[5], ^[6]

The motion to waive notice of citation was allowed, and thereafter the adoption decree entered on December 27, 2018, indicating that "notice was waived" because it was a "step parent adoption." The putative father did not receive any notice of the Massachusetts adoption proceedings before the adoption decree entered. It was not until several months later, in March 2019, that the putative father's Alaska counsel was informed by the mother's Alaska counsel (who had been informed by the mother's Massachusetts counsel) of the adoption.^[7] Eventually, after further motion practice to obtain the confidential adoption records from the Massachusetts Probate and Family Court, the putative father received a copy of the adoption decree on April 17, 2019.

On August 14, 2019, the putative father filed a petition in the Supreme Judicial Court seeking leave to appeal from the adoption decree pursuant to G. L. c. 210, § 11. On December 11, 2019, the Supreme Judicial Court issued an order remanding the matter to the Probate and Family Court for the limited purpose of addressing the statutory prerequisites for appealing under G. L. c. 210, § 11.^[8] A judge of the Probate and Family Court then held an evidentiary hearing, at which the putative father came to Massachusetts and testified. The judge found, among other things, that the putative father (1) did not receive notice before the adoption decree entered, (2) did not waive notice, nor was he the subject of a decree dispensing with the need for notice; and (3) did file a notice of appeal within 120 days of receiving actual notice. On March 10, 2021, the Supreme Judicial Court issued an order allowing the putative father to proceed with this appeal.

Discussion.

The putative father contends that he was deprived of his liberty interest, as the child's father, without due process, because that right was terminated by the adoption decree without notice or a meaningful opportunity to be heard. For the reasons that follow we agree, in light of the particular circumstances of the putative father's parental relationship with the child. Before jumping into the constitutional due process analysis, however, we first need to discuss the notice and consent framework of the Massachusetts adoption statute, G. L. c. 210, as the mother contends, incorrectly in our view, that the putative father was not entitled to notice under that statute.

1. Adoption statute.

"Adoption of children in the Commonwealth is governed by G. L. c. 210 . . . `The law of adoption is purely statutory, . . . and the governing statute, G. L. c. 210[], is to be strictly followed in all its essential particulars.'" Adoption of a Minor, 471 Mass. 373, 374 (2015), quoting Adoption of Tammy, 416 Mass. 205, 210 (1993). Two sections of the adoption statute, § 4 and § 4A, address persons required to be notified upon the filing of a petition for adoption. Of these, the important provision for present purposes is § 4, which requires notice to any person listed in G. L. c. 210, § 2, who has not given their consent to the adoption, and which further permits the court to "require additional notice and consent." G. L. c. 210, § 4.^[9]

The difficulty in this case is that the putative father does not appear to fall into any of the express categories of § 2 of the adoption statute, for which notice is required by § 4. Those categories in § 2 include (1) the child, "if above the age of twelve;" (2) "the child's spouse, if any"; (3) the child's "lawful parents"; and (4) "the mother only if the child was born out of wedlock and not previously adopted." G. L. c. 210, § 2. Of these, the only category the putative father could possibly fit is "lawful parent" — a term that is not expressly defined in the adoption statute. See G. L. c. 210, §§ 1 et seq.; Adoption of a Minor, 471 Mass. at 376-379. However, with respect to children born out of wedlock, G. L. c. 209C sets forth two methods of establishing legal paternity: a voluntary acknowledgment of parentage executed by both parents (a form unmarried parents complete to list the father on the birth certificate), or a formal adjudication of paternity by a judge. See G. L. c. 209C, §§ 1, 2, 5, 11; Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 289 (2001). See also G. L. c. 209C, § 10(b) ("Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock"). Here, because the putative father did not execute a voluntary acknowledgment of parentage with the mother, nor has his paternity been formally adjudicated by a judge, he does not appear to be a "lawful parent" for purposes of G. L. c. 210, § 2.^[10]

The mother accordingly contends that the father was not entitled to notice under the adoption statute because neither § 4 nor § 4A explicitly requires notice of an adoption proceeding to the putative father of a child born out of wedlock, where the mother has retained her parental rights.^[11] The mother relies in particular on dicta from Adoption of a Minor, 471 Mass. at 375, in which the Supreme Judicial Court stated that "G. L. c. 210, § 4, requires notice of a petition for adoption to be given only to those persons from whom written consent to the adoption must be obtained . . . and a person who does not fit into one of the statutory categories is not entitled to notice" (quotation and citation omitted).

We do not, however, read § 4 or Adoption of a Minor to state that a person who does not fit into the statutory "categories" is never entitled to notice, even under circumstances where that person is entitled to notice under the United States Constitution. Rather, § 4 identifies certain persons who must always be notified (i.e., persons whose consent is required under § 2, and who have not consented), but it also provides judges with the ability to "require additional notice and consent." This language contemplates, and makes provision for, the potential need for notice to persons not falling squarely within the § 2 categories. See G. L. c. 210, § 4. We note that in Adoption of a Minor, the Supreme Judicial Court was not faced with the issue presented here — that is, whether a putative father of a child born out of wedlock, who does not fit into one of the statutory categories, nevertheless has a due process right to receive notice of a pending stepparent adoption. Consistent with the general rule that "we assume that the Legislature intends its statutes to pass constitutional muster, and therefore `we construe statutes to avoid constitutional problems where possible,'" Chapman, petitioner, 482 Mass. 293, 305-306 (2019), quoting Commonwealth v. Maloney, 447 Mass. 577, 589 (2006), we construe G. L. c. 210, § 4, as requiring notice not only to the persons specifically identified in § 2, but also to any person having a due process right to notice under the United States Constitution. See Commonwealth v. Jones, 471 Mass. 138, 143 (2015) ("a statute is to be construed where fairly possible so as to avoid constitutional questions" [citation omitted]); Commonwealth v. Kenney, 449 Mass. 840, 851 (2007), citing Commonwealth v. Lammi, 386 Mass. 299, 301 (1982) (court must presume every enactment of Legislature intended to comply with constitutional constraints).

2. Putative father's constitutional right to notice.

Against this backdrop, we turn to the question whether the putative father in this case was constitutionally entitled to notice of adoption proceedings that would terminate his parental rights. The interest of parents "in the care, custody, and control of their children `is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.'" Adoption of Patty, 489 Mass. 630, 638 (2022), quoting Care & Protection of M.C., 479 Mass. 246, 256 (2018), S.C., 483 Mass. 444 (2019). "Before parents can be deprived of custody of their child, therefore, the requirements of due process must be satisfied." Adoption of Patty, supra. As bedrock as the above propositions are, however, they beg the question whether, and under what circumstances, a putative father is entitled to notice of adoption proceedings, where (1) the putative father and the mother were never married, (2) the child remains with the mother, and (3) the putative father's paternity has not been legally established, through either an adjudication of paternity or a voluntary acknowledgment of parentage executed by both parents. See G. L. c. 209C, § 2.

The United States Supreme Court addressed this issue in Lehr v. Robertson, 463 U.S. 248, 262 (1983), and the teaching of Lehr is that whether such a putative father is entitled to notice will depend on the facts — and in particular, whether the putative father has previously established a "significant custodial, personal, or financial relationship with [the child]." Lehr involved a putative father in New York State who, as here, did not receive notice of a pending stepparent adoption. See id. at 249-250. The putative father was not listed on the birth certificate and his paternity had never been adjudicated. See id. at 251-252. In Lehr, however, the putative father "never had any significant custodial, personal, or financial relationship with [the child], and . . . did not seek to establish a legal tie until after" the adoption proceedings had already commenced. Id. at 262. The Lehr Court ultimately concluded that, under those circumstances, the putative father did not have a constitutional right to notice of the adoption proceedings. See id. at 262-265.

But while Lehr held against the putative father's due process rights, the Lehr Court was careful to distinguish the facts before it from a situation where "an unwed father demonstrates a full commitment to the responsibilities of parenthood by `com[ing] forward to participate in the rearing of his child.'" Lehr, 463 U.S. at 261, quoting Caban v. Mohammed, 441 U.S. 380, 392 (1979). The Court stated that under those circumstances, the father's "interest in personal contact with his child acquires substantial protection under the Due Process Clause." Lehr, supra. The Court characterized this as "grasp[ing]" the "opportunity" to establish a relationship with the child and "accept[ing] some measure of responsibility for the child's future." Id. at 262. Lehr therefore teaches that a putative father who has established such a "significant custodial, personal, or financial relationship" with the child prior to the commencement of the adoption proceedings is entitled to notice, and a meaningful opportunity to be heard, before the child is adopted.^[12] Id.

Cases decided in the wake of Lehr have construed it as we do — that is, to require notice to a putative father who has "timely grasped his `opportunity'" in establishing a relationship with the child.<sup>[13]</sup> Matter of M.N.M., 605 A.2d 921, 922 (D.C.), cert. denied, 506 U.S. 1014 (1992), quoting Lehr, 463 U.S. at 262. See M.N.M., supra at 927 (putative father "`early on, and continually,' asserted his paternity and the right to assume the obligations of fathering" [citation omitted]). See also Heidbreder v. Carton, 645 N.W.2d 355, 372 (Minn.), cert. denied, 537 U.S. 1046 (2002) (Lehr recognizes putative father's entitlement to due process protection where he can demonstrate "`significant custodial, personal, or financial relationship' with the child" [citation omitted]); F.E. v. G.F.M., 35 Va. App. 648, 663 (2001) ("a biological parent who participates in the rearing of his or her child has a fundamental right to continue to participate in that relationship unless the relationship is altered or terminated by due process of law"). Indeed, the central premise of Lehr has been echoed by this court, insofar as we have said that "parents have a constitutionally protected interest in maintaining a relationship with their children . . . [and] [b]efore that relationship is severed, due process requires that there be notice and an opportunity to be heard `at a meaningful time and in a meaningful manner'" (emphasis added). Adoption of Hugh, 35 Mass. App. Ct. 346, 347 (1993), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

We therefore turn to whether the putative father in this case has established the necessary relationship with the child under the Lehr criteria. We conclude that he has. The record clearly demonstrates that the putative father had a "significant custodial, personal, [and] financial relationship" with the child: he lived with the mother before and after the child's birth; he was present at the child's birth and his surname was included in the child's middle name; the child called him "father" and his parents "grandmother" and "grandfather"; and, for the first four years of the child's life, he lived with the child, provided financial support to the child, took the child to medical appointments, and participated in enrichment activities with the child. He continued to have a relationship with the child until the mother prevented same. Moreover, the father promptly took steps to establish a legal tie to the child, by initiating a paternity action in Alaska before the adoption petition in Massachusetts was filed. See M.N.M., 605 A.2d at 926-927 (putative father "`grasped' his opportunity interest" by asserting his paternity continuously from child's birth and filing paternity action in Missouri before adoption proceedings commenced in District of Columbia). Contrast Lehr, 463 U.S. at 251-252, 263-264 (father failed to register with putative father registry and did not commence paternity action until after adoption proceedings had already commenced).

Accordingly, we conclude that the putative father should have received notice, and a meaningful opportunity to be heard, with respect to the petition for adoption filed in Massachusetts. See M.N.M., 605 A.2d at 930. The putative father asks us to vacate the adoption decree in light of the failure to notify; however, before disturbing the decree, the trial court must resolve the question of his paternity. See id. (where putative father's "paternity remains in dispute[,] before anything else takes place, the parties and the trial court must resolve that question"). If the putative father's paternity is legally established, the judge must reopen proceedings on the petition for adoption so that the putative father may participate in the proceedings under G. L. c. 210.^[14]

Conclusion.^[15]

We remand the case to the Probate and Family Court for further proceedings as follows. The putative father and child must undergo appropriate testing to determine the putative father's paternity. If the putative father is not adjudicated the child's biological father, the adoption decree shall stand. If, however, he is adjudicated the child's biological father, the judge shall (1) reopen proceedings on the petition for adoption; (2) allow the putative father to participate in the G. L. c. 210 proceedings; and (3) make any further orders, including vacating the adoption decree, as the judge deems appropriate.

So ordered.

[1] A pseudonym.

[2] "A putative father is an `alleged biological father.'" Adoption of a Minor, 471 Mass. 373, 377 n.7 (2015), quoting Black's Law Dictionary 725 (10th ed. 2014).

[3] Pursuant to G. L. c. 210, § 4A, a putative father may file a "parental responsibility claim" with DCF, entitling him (1) to receive notice of either the mother's voluntary surrender of the child, or the involuntary termination of the mother's right to withhold consent to the child's adoption; and (2) to file a petition for adoption or custody of the child, which petition shall be considered by the court "expeditiously" and "without regard to other potential adoptive parents."

[4] Upon the filing of a petition for adoption, the Probate and Family Court issues a citation ordering service on the persons entitled to notice of the petition. See Adoption of a Minor, 363 Mass. 537, 541 (1973); G. L. c. 210, §§ 4, 4A; Rules 3 and 6 of the Supplemental Rules of the Probate and Family Court (2012).

[5] There is no finding as to whether the mother, her husband, or both, knew of the putative father's pending Alaska paternity action at the time that they filed the petition for adoption in Massachusetts. The record reflects that, at the very latest, the mother knew of the Alaska paternity action by August 2018, because she retained Alaska counsel who appeared on her behalf at the initial Alaska paternity hearing in August 2018. The mother did not, however, inform the Probate and Family Court of the pending Alaska paternity action once she learned of it, and the affidavit disclosing other proceedings was never amended to reflect the Alaska paternity action. Moreover, although the mother appeared through her Alaska counsel at three hearings on the putative father's paternity complaint between August and October 2018, she did not inform the Alaska court of the Massachusetts adoption proceedings during any of those hearings.

[6] In the affidavit accompanying the motion to waive notice, the mother averred that the putative father was a "sadist" and a "pedophile," and that he had sexually abused the child and threatened to kidnap her. While we acknowledge the mother's allegations, those allegations do not bear on whether the putative father was entitled to notice of the adoption proceedings.

[7] The putative father represents in his brief that due to the Massachusetts adoption, the Alaska proceeding was initially stayed, and has since been dismissed.

[8] "The supreme judicial court may allow a parent, who, upon a petition for adoption, had no notice of the proceedings before the decree and had neither waived notice in accordance with section two nor been the subject of a decree dispensing with need for notice in accordance with section three, to appeal therefrom within one hundred and twenty days after actual notice thereof." G. L. c. 210, § 11. The term "parent" set forth in § 11 is not defined.

[9] General Laws c. 210, § 4, provides: "If the written consent required by section two is not submitted to the court with the petition, the court shall . . . order notice by personal service upon the parties of an order of notice, . . . and the court may require additional notice and consent. But if such child is of unknown parentage and is a foundling, publication as herein set forth shall not be required; but notice of the petition shall be given to the department of children and families."

[10] We have analyzed the question whether the putative father is a "lawful parent" under Massachusetts law. No party has suggested that a different State's law might apply, or be materially different. Nor does the putative father contend that the court did not have jurisdiction, see G. L. c. 209B, § 2, and we therefore do not consider the matter.

[11] Section 4A identifies an additional person entitled to notice: a putative father of a child born out of wedlock, but only if (1) he has filed a parental responsibility claim with DCF consistent with the procedure set forth in § 4A, and (2) the mother's parental rights have been terminated, either voluntarily or involuntarily. See G. L. c. 210, § 4A.

We do not agree with the putative father's contention that he was entitled to notice under § 4A. By its plain language, § 4A applies "[w]henever the mother of a child born out of wedlock has surrendered the child in accordance with section two, or whenever the right of such mother to withhold consent for adoption has been terminated in accordance with section three." G. L. c. 210, § 4A. Despite this limiting language in the first sentence of § 4A, the father contends that the last sentence of § 4A entitles a putative father to notice of any adoption proceeding (even where the mother's parental rights have not been terminated), if he has filed a parental responsibility claim. We do not agree with the father's overly broad reading of § 4A's last sentence, which merely provides that "[n]o other petition for adoption shall be allowed without proof of compliance with this section." The phrase "compliance with this section" necessarily requires compliance with the entire section, including the limiting language set forth in the first sentence.

[12] "Seek[ing] to establish a legal tie" is another factor that should be considered. Lehr, 463 U.S. at 262.

[13] The mother points out that in Matter of J.S.V., 402 Mass. 571, 575 (1988), the Supreme Judicial Court stated that "[a]s a matter of due process, an unmarried, putative father has no absolute due process right to notice, and opportunity to be heard, before the child may be adopted." However, the court also recognized in a footnote that "[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood . . . his interest in personal contact with his child acquires substantial protection under the Due Process Clause." Id. at 575 n.6, quoting Lehr, 463 U.S. at 261. Our decision is therefore consistent with the Supreme Judicial Court's opinion in J.S.V. Moreover, this case is factually distinguishable from J.S.V., as in J.S.V. the mother was married at the time of conception, the husband had not denied paternity, and the putative father put forth no offer of proof to overcome the husband's presumption of paternity. See J.S.V., 402 Mass. at 572, 574.

[14] The putative father has not argued that if he is not adjudicated the biological father of the child, he should be deemed the de facto father of the child. The putative father initially argued that he was the de facto parent of the child's two half-siblings, but later dropped that claim. We accordingly do not address any issues that might arise from a claim of de facto parentage.

[15] The father's request for appellate fees and costs is denied."

GENETIC TESTING AND PATERNITY ISSUES

MATTER OF RYAN ME v. SHELBY S., 191 AD 3d 1315 - (4th Dept. 2021):

"...It is well established that "the existence of a valid acknowledgment of paternity does not bar a claim of paternity by one who is not a party to it" (Matter of Ezequiel L.-V. v Inez M., 161 AD3d 689, 690 [1st Dept 2018] [emphasis added]; see Matter of Stephen N. v Amanda O., 140 AD3d 1223, 1224 [3d Dept 2016]; Matter of Thomas T. [Luba R.], 121 AD3d 800, 800 [2d Dept 2014]). Indeed, any man "alleging to be the father" may commence a paternity proceeding under Family Court Act § 522 (Matter of Cathleen P. v Gary P., 63 NY2d 805, 807 [1984]). Thus, as a man alleging to be the subject child's father, petitioner had standing to commence this proceeding pursuant to section 522 (see id.; Stephen N., 140 AD3d at 1224; Matter of Tyrone G. v Fifi N., 189 AD2d 8, 13-14 [1st Dept 1993]). Contrary to respondents' assertions, the standing limitations applicable to a proceeding under section 516-a have no bearing on a person's standing to commence a proceeding under section 522 (see Stephen N., 140 AD3d at 1224; Matter of Marquis B. v Rason B., 94 AD3d 883, 883 [2d Dept 2012], lv dismissed 19 NY3d 991 [2012]).

Respondents further contend that the court erred in granting petitioner's motion for genetic testing without first affirmatively finding that such testing would best serve the child's interests. The law does not require such an affirmative finding as a precondition to ordering genetic testing, however. Insofar as relevant here, Family Court Act § 532(a) provides that, upon "the motion of any party, [the court] shall order the mother, her child and the alleged father to submit to [genetic] tests... No such test shall be ordered, however, 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" (emphasis added). As the Court of Appeals explained in construing identical language in section 418(a), the legislature made genetic testing in paternity cases "mandatory," subject to a single "limited" exception that applies only when one of three threshold barriers—res judicata, equitable estoppel, or the presumption of legitimacy—are present and where genetic testing would not serve the best interests of the child (Matter of Shondel J. v Mark D., 7 NY3d 320, 329 [2006]). Thus, a court has no power to deny an otherwise proper demand for genetic testing on the ground that testing would not serve the child's best interests due to factors other than res judicata, equitable estoppel, or the presumption of legitimacy (see Matter of Suffolk County Dept. of Social Servs. v James D., 147 AD3d 1067, 1069 [2d Dept 2017]; Matter of Costello v Timothy R., 109 AD2d 933, 933 [3d Dept 1985]; Matter of Leromain v Venduro, 95 AD2d 80, 83 [3d Dept 1983]). Indeed, in the absence of res judicata, equitable estoppel, or the presumption of legitimacy, "the Legislature has plainly indicated its belief that the best interests of the child will, in fact, be advanced by establishing the alleged father's paternity, irrespective of the mother's wishes" (Leromain, 95 AD2d at 83). The legislative policy identified in Leromain explains why section 532(a) requires factual findings concerning the child's best interests when a court denies a motion for genetic testing, but not when a court grants such a motion (see generally Shondel J., 7 NY3d at 329).

Respondents do not contend that either res judicata or the presumption of legitimacy applies in this case, and the mother does not contend that equitable estoppel applies. The boyfriend's current assertion of equitable estoppel is improperly raised for the first time on appeal (see Matter of Beth R. v Ronald S., 149 AD3d 1216, 1218 [3d Dept 2017]; see also People v Bailey, 32 NY3d 70, 79 [2018]). In any event, given petitioner's commencement of this proceeding within weeks of the child's birth, equitable estoppel is clearly inapplicable in this case (see Matter of Luis V. v Laisha P.T., 184 AD3d 648, 649 [2d Dept 2020]; Matter of Michael S. v Sultana R., 163 AD3d 464, 476 1318*1318 [1st Dept 2018], lv dismissed 35 NY3d 964 [2020]). Thus, because none of the three threshold barriers existed in this case, the court was required to grant petitioner's motion for genetic testing (see Costello, 109 AD2d at 933; Leromain, 95 AD2d at 83), and the court cannot be faulted for failing to make factual findings about the child's overall best interests that could not, as a matter of law, have altered its statutory duty to order testing.

Finally, given the continued existence of the AOP, we acknowledge respondents' concern that the order of filiation might have effectively created an impermissible three-parent arrangement for the subject child (see generally Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 18 n 3 [2016]; Matter of Tomeka N.H. v Jesus R., 183 AD3d 106, 111 [4th Dept 2020]). The court, however, had the power to vacate the AOP to address that concern (see Michael S., 163 AD3d at 474; Matter of Marshall P. v Latifah H., 154 AD3d 709, 710 [2d Dept 2017]), and we conclude that the AOP should be vacated in order to eliminate any question that petitioner is the child's only legal father. We therefore modify the order by granting petitioner's motion in its entirety and vacating the AOP. Respondents' remaining contentions do not require reversal or further modification of the order."

FATHER FILES PATERNITY PROCEEDING FOR CHILD BORN TO MARRIED COUPLE

Matter of K.B. v R.S., 2020 NY Slip Op 50958(U), Decided on August 18, 2020, Family Court, Onondaga County, Hanuszczak, J.:

"On December 23, 2019, Petitioner K.B. filed a petition seeking to be adjudicated the father of the unborn child of the Mother R.S. (the Mother). An amended petition was subsequently filed on February 6, 2020 including the name of the child as L.R.S., born on January 17, 2020. The Mother filed a motion to dismiss the paternity petition on February 7, 2020, arguing that the instant petition did not state a claim upon which relief may be granted because she is married and the petition did not establish non-access on the part of her husband. On February 19, 2020, the matter was heard before the Support Magistrate, who referred the case to this Court to address the issues of the presumption of legitimacy based upon the fact that the Mother was married at the time of the child's birth. The Mother's husband, Mr. S. S., appeared before the Support Magistrate on February 19, 2020 and before this Court on March 9, 2020. The Court assigned an Attorney for the Child (AFC) to represent the interests of the child L. on March 9, 2020. After receiving the arguments of counsel, including the Attorney for the Child, this Court denied the motion to dismiss in a written decision on April 28, 2020.

This Court held appearances with counsel via Skype for Business on July 8, 2020 and July 23, 2020. During the July 8, 2020 conference, the Court adjourned the matter to July 23, 2020 to address the issue of equitable estoppel. On the July 23, 2020 date, the Court entertained arguments from counsel concerning equitable estoppel. At that point, the Mother's counsel indicated that he had filed for an interlocutory appeal of this Court's decision denying the Mother's motion to dismiss the petition and was seeking a stay. As of today's date, the Court is unaware that any stay has been granted by the Appellate Division in this matter.

During the July 23, 2020 settlement conference, the Court specifically asked counsel about any potential irreparable harm that would be suffered by the child if genetic marker testing was permitted. The Mother's counsel did not make any specific argument on this point. The Court notes that the Mother has not raised equitable estoppel at all in her filings. The Attorney for the Child argued that the child has lived with Mr. S. (the Mother's husband) all of his life and knows Mr. S. as his father. Mr. B.'s counsel asserted that no hearing was required and that any further delay would further prejudice his client. The Court indicated that it would issue a written decision on whether a hearing was required and whether a genetic marker test would be ordered in this matter.

Family Court Act §532 provides that the Court "shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests" on its own motion or the motion of any party (§532(a)). The statute further states that "no test shall be ordered, however, 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 [*2]women" (Id.). The Court, after a review of the pleadings and based upon the arguments of counsel, finds in this matter that it is in the best interests of the child to order a genetic marker test. Under the unique circumstances of this case, no hearing is warranted (Matter of Marilene S. v David H., 85 AD3d 1035 [2nd Dept 2011]).
The Court has considered whether the Mother's marriage to Mr. S. is a bar to a genetic market test in this case. The Court notes the statute "does not impose a blanket prohibition on genetic testing whenever the presumption of legitimacy is found to apply" (Matter of Mario WW v Kristin XX, 173 AD3d 1392 [3rd Dept 2019]). Once Mr. B. made sufficient allegations that a nonfrivolous controversy exists as to paternity, the burden shifted to the Mother to demonstrate "why testing would not be in the [child's] best interests, and she can not simply rely upon the presumption of legitimacy" (Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133 [3rd Dept 2006]). The Mother must show more than just that the presumption applies, "but also that, given the entirety of the circumstances, including the applicability of the presumption, such testing will not serve the best interest of the child" (Prowda v Wilner, 217 AD2d 287 [3rd Dept 1995]). The Mother has not made such a showing.
In reviewing whether the marital presumption should preclude genetic testing, the Court has considered the following factors: "the child's interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing" (Matter of Mario WW v Kristin XX, 149 AD3d 1227 [3rd Dept 2017]). The Court has also considered the husband's relationship with the child, any potential trauma to the child from identifying someone else as the father of the child and "the very real disruption to the stability of the child's existing family that would result" (Matter of Christopher YY v Jessica ZZ, 159 AD3d 18 [3rd Dept 2018]).

In this case, Mr. B. filed the paternity petition before the child was born (Family Court Act §517), which put all parties on notice that he was claiming to be the father of the child. The Court finds that, with respect to the first factor, the child "certainly has an interest in knowing the identity of her biological father" (Matter of Anthony M., 271 AD2d 709 [3rd Dept 2000]). Given that the child is currently seven (7) months old and that the petition was filed before her birth, the Court finds that any genetic market testing would not be traumatic to the child. The Court has also considered that continued uncertainty could have a traumatic effect on the child, particularly as the child grows older. A determination at this age is in the best interests of the child.

The Court has additionally considered whether testing would disrupt an intact family unit in this case. Initially, the Court notes that since the petition was filed before the child's birth, any bonding between the child and Mr. S. that has occurred was created by the Mother, despite knowledge of Mr. B.'s petition. Accordingly, any lack of involvement with the child on the part of Mr. B. is due to the Mother's actions, not due to any lack of effort on the part of Mr. B. While the Court does recognize the possibility that genetic marker testing in this case could upset the current living situation of the child, the Court finds that the child's interest in knowing the identity of her father outweighs that concern, especially given the fact that the child is under a year old. The Court additionally notes that if Mr. B. is the father of the child, any further delay would significantly impact his ability to form a relationship with the child. Accordingly, the Court finds that the marital presumption does not preclude a genetic marker test in this case.This case can be distinguished from Matter of Tracy C.O. v Douglas A.F., because in that [*3]case, the petition was not filed until the child was almost eight years old (66 AD3d 1390 [4th Dept 2009]). Additionally, an Attorney for the Child has been assigned in this matter and the Court here has considered the specific best interests of the child.

With respect to equitable estoppel, the Court finds that a prima facie case has not been made that is sufficient to prevent a genetic market test in this case. The Court of Appeals explained that "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 [2006]). "The law imposes the doctrine as a matter of fairness" (Matter of Young v Rios, 151 AD3d 1862 [4th Dept 2017]).Its purpose 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. at 326). This doctrine may be used to "prevent a biological father from asserting paternity rights when it would be detrimental to a child's interests to disrupt the child's close relationship with another father figure" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010]). It is generally imposed "to protect the status interests of a child in an already recognized and operative parent-child relationship" (Matter of Suffolk County Department of Social Services v James D., 147 AD3d 1067 [2nd Dept 2017]). The best interests of the child is the "paramount concern" (Matter of Greg S. v Keri C., 38 AD3d 905 [2nd Dept 2007]).

The party raising the issue of equitable estoppel bears the initial burden of proof (Matter of Starla D. v Jeremy E., 95 AD3d 1605 [3rd Dept 2012]). In this case, the Mother did not specifically raise the issue of equitable estoppel (See, Matter of Beth R. v Ronald S., 149 AD3d 1216 [3rd Dept 2017]). The Attorney for the Child may also invoke the doctrine of equitable estoppel (Matter of Cleophous P. v Latrica M.R., 299 AD2d 936 [4th Dept 2002]) as she has in this case. An equitable estoppel issue may be decided without a hearing "if Family Court possesses sufficient information to render an informed decision consistent with the child's best interests" (Matter of Edward WW v Diana XX, 79 AD3d 1181 [3rd Dept 2010]).

The Court finds that a prima facie case of equitable estoppel has not been made in this case. An essential element of equitable estoppel is that the purported biological father must have acquiesced to allowing another man to act as the child's father. In this case, Mr. B. did not acquiesce to Mr. S. developing a relationship with the child, in that he filed his paternity action before the birth of the child (See, Matter of John J. v Kayla I., 137 AD3d 1500 [3rd Dept 2016]). No claim has been made, nor could there have been on these facts, that Mr. B. permitted Mr. S. to act as the child's father, to the detriment of the child. The Court finds that a hearing in this matter is not required, as the Court has "sufficient information to render an informed decision consistent with the child's best interests" (Matter of Razo v Leyva, 3 AD3d 571 [2nd Dept 2004]) and no prima facie case of equitable estoppel has been established.

Moreover, there have been no specific claims that "the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if a genetic marker test was ordered" in this case (Matter of Denise R-D v Julio R.P., 179 AD3d 704 [2nd Dept 2020]). The importance of this young child discovering the identity of her father is also a relevant consideration (Matter of William X v Linda Y, 132 AD3d 1195 [3rd Dept 2015]). While the AFC has alleged that the child would be harmed if testing was ordered, that blanket allegation alone, without any specific claim of harm to the child or irreparable loss [*4]of status, is insufficient to trigger a hearing in this case. Further, as the petition was filed before the child was born, there was no operative parent-child relationship between Mr. S. and the child (See, Matter of Luis V v Laisha P.T., 184 AD3d 648 [2nd Dept 2020]).

The Court is mindful that this petition was filed before the subject child was born and the child is now over seven months old. The COVID-19 pandemic has contributed to the delay in this case. A hearing in this matter would delay the resolution of paternity and undoubtedly prejudice Mr. B., who filed his petition on December 23, 2019. It would also be contrary to the best interests of the child, who has lived with uncertainty since her birth on January 17, 2020, and who deserves to know the identity of her father. Mr. and Mrs. S. also deserve an expeditious resolution to this matter. Any further delay in this matter will undoubtedly cause the child to become further entrenched in an uncertain familial situation; circumstances which presumably Mr. B. was attempting to avoid in filing this paternity action at the earliest possible opportunity. At the time Mr. B. filed the petition, the child had no relationship with Mr. S. Waiting any longer would only serve to create or cement such a relationship, at the expense of Mr. B. This would additionally be manifestly unfair to the child, who could be missing out on precious time with a potential biological father.

The Court finds that a genetic marker test is in the best interests of the child L. The matter shall be returned to the Support Magistrate for a genetic marker test to be scheduled and for further proceedings. Mr. B. shall bear the cost of the testing."

DETERMINING PATERNITY AND EQUITABLE ESTOPPEL

By having the paternity determined first, the petitioner should have an "easier" divorce as child custody/parenting/support would not be an issue.

Matter of Onorina C.T. v Ricardo R.E., 2019 NY Slip Op 03345, Decided on May 1, 2019, Appellate Division, Second Department:

"The petitioner commenced this proceeding pursuant to Family Court Act article 5 to adjudicate the respondent Ricardo R. E. the father of the subject child. The child was conceived and born while the petitioner was married to another man, the respondent Jorge E. T. (hereinafter the husband). The petition alleged that the husband was the petitioner's sex trafficker and that she conceived the child while he was out of the country. The petition further alleged that Ricardo R. E. is the biological father of the child, he is named as the father on the child's birth certificate, and he has supported the child and raised the child as his since birth. The petitioner did not testify at the fact-finding hearing. Ricardo R. E. testified that he began having a sexual relationship with the petitioner in 2011, and she told him in October 2011 that she was pregnant with his child, at which time she came to live with him. He testified that he was present for the child's birth in July 2012, and he has raised the child from birth as his father. The husband testified that he had returned to the country in September 2011 and had engaged in sexual activity, including intercourse, with the petitioner until November 2011, when she told him that she was pregnant with another man's child and left the husband. After the fact-finding hearing, the Family Court determined that the petitioner failed to rebut the presumption of legitimacy by clear and convincing evidence and, in effect, denied the petition and dismissed the proceeding without determining the issue of equitable estoppel raised [*2]by the petitioner and Ricardo R. E.

"Paternity proceedings, brought pursuant to article 5 of the Family Court Act, have a twofold purpose: to determine paternity and to secure support for the child" (Matter of Department of Social Servs. v Jay W., 105 AD2d 19, 23). "Although at one time the objective of paternity proceedings was merely to prevent a child born out of wedlock from becoming a public charge, it is now well established that the appropriate emphasis must be upon the welfare of the child" (Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5). Pursuant to Family Court Act § 532(a), when a paternity petition is filed, the 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, "[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" (Family Ct Act § 532[a]; see Family Ct Act § 418[a]). Thus, where, as here, paternity is in issue, the Family Court is required to order biological tests unless it relies upon the best interests of the child exception and, if so, it must "justify its refusal to order [such] tests" (Matter of Shondel J. v Mark D., 7 NY3d 320, 329; see Matter of Christopher YY. v Jessica ZZ., 159 AD3d 18, 22; Matter of Suffolk County Dept. of Social Servs. v James D., 147 AD3d 1067, 1069; Matter of Tralisa R. v Max S., 145 AD3d 727, 727-728).

"A child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and most persuasive known to the law'" (David L. v Cindy Pearl L., 208 AD2d 502, 503, quoting Matter of Findlay, 253 NY 1, 7). Here, because the subject child was conceived and born during the marriage, there is a presumption that the child is the legitimate child of both the petitioner and the husband (see Domestic Relations Law § 24[1]; Family Ct Act § 417; Matter of Christopher YY. v Jessica ZZ., 159 AD3d at 26-28; Matter of Maria-Irene D. [Carlo A. Han Ming T.], 153 AD3d 1203, 1205; Matter of Carl Henry P. v Tiwiana L., 82 AD3d 1245, 1246). However, this presumption of legitimacy may be rebutted by clear and convincing evidence "excluding the husband as the father or otherwise tending to disprove legitimacy" (Matter of Barbara S. v Michael I., 24 AD3d 451, 452).

Even if the presumption of legitimacy applies, the Family Court must proceed to an analysis of the best interests of the child before deciding whether to order a test (see Matter of Mario WW. v Kristin XX., 149 AD3d 1227, 1228). To that end, the "paramount concern" in a proceeding to establish paternity is the best interests of the child, and the Family Court should hold a hearing addressed to that determination (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 5 [internal quotation marks and citation omitted]). Importantly, biology is not dispositive in a court's paternity determination (see id. at 3; Matter of Shondel J. v Mark D., 7 NY3d at 326, 330; Matter of Carlos O. v Maria G., 149 AD3d 945, 946-947; Matter of Melissa S. v Frederick T., 8 AD3d 738, 738-739; Matter of Richard W. v Roberta Y., 240 AD2d 812, 814; see also Family Ct Act §§ 532[a]; 418[a]; Domestic Relations Law § 73; Matter of Joshua AA. v Jessica BB., 132 AD3d 1107, 1108).

In the present case, we agree with the Family Court that the petitioner failed to rebut the presumption of legitimacy by clear and convincing evidence (see Matter of Barbara S. v Michael I., 24 AD3d at 453). Nevertheless, regardless of the applicability of the presumption of legitimacy, the Family Court should not have refused to consider the issue of equitable estoppel raised by the petitioner and Ricardo R. E. in response to the husband's assertion of paternity (see Matter of Suffolk County Dept. of Social Servs. v James D., 147 AD3d 1067, 1069; Matter of Marilene S. v David H., 85 AD3d 1035, 1036; Matter of Ruby M.M. v Moses K., 18 AD3d 471, 472; Matter of Commissioner of Social Servs., Suffolk County DSS v Connolly, 303 AD2d 754). As relevant here, the doctrine "is a defense in a paternity proceeding which, among other applications, precludes a man from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man" (Matter of John J. v Kayla I., 137 AD3d 1500, 1501 [internal quotation marks, ellipsis, and citations omitted]; see Matter of Stephen N. v Amanda O., 140 AD3d 1223, 1224; see also Family Ct Act § 522). It is significant that "courts impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship" (Matter of Shondel J. v Mark D., 7 NY3d at 327 [internal quotation marks and citation omitted]; see Matter of Suffolk County Dept. of Social Servs. v James D., 147 AD3d at 1069; see also Matter of [*3]Baby Boy C., 84 NY2d 91, 102 n.). While this doctrine is invoked in a variety of situations, "whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, [it] is only to be used to protect the best interests of the child" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d at 6; see Matter of Suffolk County Dept. of Social Servs. v James D., 147 AD3d at 1069). For that reason, this dispute does not involve the equities between or among the adults. The case turns exclusively on the best interests of the child (see Matter of Shondel J. v Mark D., 7 NY3d at 330; accord Matter of Carlos O. v Maria G., 149 AD3d at 946).

Although the Family Court should not have declined to consider the doctrine of equitable estoppel, the record contains sufficient evidence for this Court to make a determination that it is in the child's best interests to equitably estop the husband from asserting paternity. It is undisputed that Ricardo R. E. was present at the child's birth, gave the child his surname, and is recorded as the father on the child's birth certificate. Moreover, Ricardo R. E. lived with the child since his birth, supported the child financially, was actively involved in his care, and established a loving father-son relationship with the child over the first three years of his life before the husband asserted paternity. Further, it is uncontested that the father-son relationship between Ricardo R. E. and the child continued to exist at the time of the hearing, and that he refers to the child as his son.

The husband, who was aware that he could potentially be the child's biological father before the child's birth, was not involved in the child's prenatal care or present at his birth, and had never met or attempted to contact the child after his birth. He was employed, but never paid child support, and provided no financial support.

Under the circumstances, the Family Court should have determined that it was in the child's best interests to equitably estop the husband from asserting his paternity claim (see Matter of Shondel J. v Mark D., 7 NY3d at 326; Matter of Christopher YY. v Jessica ZZ., 159 AD3d at 28; Matter of Carlos O. v Maria G., 149 AD3d at 946; Matter of Stephen N. v Amanda O., 140 AD3d 1223, 1224; Matter of Richard W. v Roberta Y., 240 AD2d at 814). Genetic testing is not in the child's best interests (see Matter of Carlos O. v Maria G., 149 AD3d 945, cf. Matter of Beth R. v Ronald S., 149 AD3d 1216, 1218-1219; Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1134; Matter of Anthony M., 271 AD2d 709, 711). To permit the husband to assume a parental role at this juncture would be unjust and inequitable (see Matter of Richard W. v Roberta Y., 240 AD2d at 814). Accordingly, the court should have granted the petition to adjudicate Ricardo R. E. the father of the child."

CHALLENGING PATERNITY

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.