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."

CHILD CUSTODY - DETERMINATION OF PARENTHOOD IN NON-TRADITIONAL FAMILIES

This is from the NYLJ Case Digest Summary - The Appellate Division remanded this case to consider equitably estopping the biological mother from denying her former partner's parentage of her son. The former partner wanted access time with AH pendente lite and relied on court's prior finding interim access was warranted to maintain consistency with AH's experience with her. Here, the court addressed the interim access petition in view of AH's best interest "despite absence of specific statutory authority or applicable case law, directing parties to appear for a framed issue hearing" noting that "ultimate determination of parenthood would be predicated on AH's best interests, setting out criteria for consideration...." 

K.G. v. C.H., NYLJ 2/4/19, Date filed: 2019-01-18, Court: Supreme Court, New York, Judge: Justice Frank Nervo, Case Number: 309154/2016:

"The parties urged this Court to establish criteria for equitable estoppel in order that any appointed forensic expert, as well as all others concerned with the orderly progression of this matter, be properly guided. The elements of equitable estoppel are established by this Court as set forth below. Prior to the date of this order, the parties had been provided the opportunity to object to any or all elements of these criteria on any ground appropriate, particularly in view of objections previously asserted that disputes of this nature present an inherent heightened legal barrier to nontraditional family members. Those objections were found to be entirely without merit by the Appellate Division (163 A.D.3d 67, 78-79). This Court maintains the concern that no criteria here established present any heightened legal barrier, or any unique challenge or unique difficulty whatsoever for members of LGBTQ or other nontraditional families. To date, neither party has presented any objection, and the Court remains available to address any objection which may come to light as this matter proceeds. A number of similar petitions are currently in various stages of litigation within and without the State of New York, and a number of courts are contemporaneously establishing criteria for equitable estoppel as a result of the different records made on different days (as presciently predicted by the Court in Brooke S.B. v. Elizabeth A.D.D., 28 NY3d 1, 28). Therefore, for purposes of distinct reference and clarity, the following criteria shall be designated:

JUDGE NERVO’s CRITERIA FOR EQUITABLE ESTOPPEL

The ultimate determination of parenthood shall be predicated upon the best interests of the child. In consideration thereof, the court will determine and consider the extent to which the petitioner, by clear and convincing evidence:

(1) undertook full and permanent fiscal responsibilities for the child without expectation of financial compensation;

(2) resided with the child;

(3) affirmatively held out the child as her own, or what objective observation of the relationship by others in their community would demonstrate;

(4) otherwise engaged in consistent caretaking of the child;

(5) had been in a parental role for a length of time sufficient to have established with the child a bonded, dependent, parental relationship;

(6) is recognized or acknowledged as parental by the child;

(7) has a close and deep emotional bond with the child;

(8) bonded a dependent relationship with the child, supported, or facilitated, affirmatively or impliedly, by the legal parent;

(9) engaged in decision-making with the legal parent with respect to major issues concerning the child including, but not limited to, health, welfare, education, and any participation in organized religion;

(10) is or was part of any formalized relationship with the legal parent and/or the child; and

(11) how the abrupt, or continued, termination from any and all contact with the petitioner has, or would continue to, adversely affect the child, if at all."