Cleophous P. v. Latrice M.R. , 750 N.Y.S.2d 380 ( 2002 )

Appeal from an order of Family Court, Erie County (Mix, J.), entered April 4, 2001, which dismissed the petition seeking to vacate the acknowledgment of paternity executed by petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is granted.

Memorandum: Family Court erred in dismissing the petition seeking to vacate the acknowledgment of paternity executed by petitioner. Before the instant petition was filed, the parties agreed to DNA testing, which excluded petitioner as the father of the child. Respondent did not oppose the petition. Although the Law Guardian may invoke the doctrine of equitable estoppel on the child’s behalf to prevent petitioner from rescinding his acknowledgment of paternity (see Hammack v Hammack, 291 AD2d 718, 719; Verra v Bowman-Verra, 266 AD2d 682, 683), “the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the child * * * who [is] the subject of the controversy” (Matter of Charles v Charles, 296 AD2d 547, 549). Here, the parties were never married and ended their relationship when the child was two or three years old. Although petitioner continued to provide child support, he testified that he has seen the child only “off and on, every now and then” since 1996. Further, respondent’s fiancé hopes to adopt the child following his marriage to respondent. Under all of the circumstances, including the undisputed proof that petitioner is not the child’s biological father, we conclude that the application of the doctrine of equitable estoppel to prevent petitioner from rescinding his acknowledgment of paternity will not further the child’s best interests (see Matter of Darcie T. v Robert M.L., 255 AD2d 955; see also Matter of Erie County Dept, of Social Servs. [Tiffany M.H.] v Greg G., 273 AD2d 919; Queal v Queal, 179 AD2d 1070). Present — Green, J.P., Wisner, Hurlbutt, Burns and Gorski, JJ.