L., JENNIFER v. S., GERALD ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1189
    CAF 15-01025
    PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
    IN THE MATTER OF JENNIFER L.,
    PETITIONER-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    GERALD S., JR., RESPONDENT-APPELLANT.
    -----------------------------------------
    IN THE MATTER OF GERALD S., JR.,
    PETITIONER-APPELLANT,
    V
    JENNIFER L., RESPONDENT-RESPONDENT.
    -----------------------------------------
    IN THE MATTER OF MELINDA L.-B.,
    PETITIONER-RESPONDENT,
    V
    GERALD S., JR., RESPONDENT-APPELLANT,
    AND JENNIFER L., RESPONDENT-RESPONDENT.
    -----------------------------------------
    IN THE MATTER OF JENNIFER L., PETITIONER,
    V
    SHANE C., RESPONDENT.
    KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER (KATHLEEN
    P. REARDON OF COUNSEL), FOR RESPONDENT-APPELLANT AND PETITIONER-
    APPELLANT.
    PAUL B. WATKINS, FAIRPORT, FOR PETITIONER-RESPONDENT JENNIFER L. AND
    RESPONDENT-RESPONDENT.
    NATHAN A. VANLOON, ATTORNEY FOR THE CHILD, ROCHESTER.
    Appeal from an order of the Family Court, Monroe County (Patricia
    E. Gallaher, J.), entered April 29, 2015 in proceedings pursuant to
    Family Court Act article 5 and article 6. The order, among other
    things, vacated the acknowledgment of paternity signed by Gerald S.,
    Jr., and Jennifer L.
    It is hereby ORDERED that the order so appealed from is
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    CAF 15-01025
    unanimously reversed on the law without costs, the acknowledgment of
    paternity, custody order, and petition for modification of custody are
    reinstated, the second and fifth through eighth ordering paragraphs
    are vacated and the matter is remitted to Family Court, Monroe County,
    for further proceedings in accordance with the following memorandum:
    Petitioner mother in the first proceeding is the biological mother of
    a child born in October 2012. A week after the child’s birth, the
    mother and respondent in the first proceeding, Gerald S., Jr.
    (Gerald), signed an acknowledgment of paternity. The mother was
    unable to care for the child because of her own mental health issues,
    and custody was granted to Gerald. Approximately one year later,
    Family Court issued a consent order granting the mother and Gerald
    joint custody with Gerald having primary physical residency. Less
    than two months later, however, in December 2013, the mother filed the
    petition in the first proceeding to vacate the acknowledgment of
    paternity. Gerald then filed the petition in the second proceeding to
    modify custody by seeking sole custody of the child. In the third
    proceeding, the child’s maternal grandmother filed a petition seeking
    custody of the child. In the fourth proceeding, the mother filed a
    paternity petition against Shane C. (Shane) in March 2014.
    The mother and Shane appeared before the court on the paternity
    petition, and Shane, who had no involvement in the child’s life to
    that point, expressed in no uncertain terms that he wanted nothing to
    do with the child. Nevertheless, the court, without notification to
    Gerald, ordered a genetic marker test, which indicated a 99.99%
    probability that Shane was the child’s father. At the next court
    appearance, on the mother’s petition to vacate the acknowledgment of
    paternity, Gerald raised the defense of equitable estoppel, and the
    court reluctantly ordered a hearing. At the conclusion of the
    hearing, the court, inter alia, granted the mother’s petition to
    vacate the acknowledgment of paternity, dismissed Gerald’s
    modification petition with prejudice, vacated the custody order,
    implicitly granted the mother’s paternity petition with respect to
    Shane by declaring Shane the father of the child, and removed Gerald
    as a party in the grandmother’s proceeding. According to the parties,
    the child is currently in the custody of the maternal grandmother.
    “New York courts have long applied the doctrine of estoppel in
    paternity and support proceedings” (Matter of Shondel J. v Mark D., 7
    NY3d 320, 326). The Legislature has specifically incorporated the
    estoppel doctrine in statutes. Specifically, the pertinent statutes
    provide that no genetic marker 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 . . . equitable estoppel” (Family Ct Act
    §§ 418 [a]; 532 [a]). Estoppel may be used “in the offensive posture
    to enforce rights or the defensive posture to prevent rights from
    being enforced” (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1,
    6). Whether estoppel should be applied depends entirely on the best
    interests of the child and not the equities between the adults (see
    Shondel J., 7 NY3d at 330; Matter of Isaiah A.C. v Faith T., 43 AD3d
    1048, 1048).
    “Family Court should consider paternity by estoppel before it
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    CAF 15-01025
    decides whether to test for biological paternity” (Shondel J., 7 NY3d
    at 330; see Isaiah A.C., 43 AD3d at 1048). That did not occur here
    because Gerald was not a named party in the paternity proceeding and
    did not otherwise appear when the court ordered Shane to submit to a
    genetic marker test, so he did not have the opportunity to raise the
    doctrine of estoppel. The court should have joined Gerald in that
    proceeding or otherwise notified him before it ordered the test (see
    Isaiah A.C., 43 AD3d at 1048-1049). After all, Gerald was not only
    the acknowledged father of the child, but was the custodial parent of
    the child, and the court was well aware of those facts inasmuch as it
    had issued the custody orders. The court made it clear in its
    decision, however, that even if Gerald had made a timely objection and
    raised the defense earlier, the court nevertheless would have ordered
    the test because the child was young and “the truth is important.”
    That is contrary to both the plain language of the statute and
    statements of law by the Court of Appeals.
    Even though the genetic marker test had already been conducted,
    the court was still authorized to consider the estoppel issue (see
    Shondel J., 7 NY3d at 330). We conclude that, although the court held
    a hearing on that issue, its decision shows that it has little regard
    for the doctrine of estoppel, despite the fact that it “is now secured
    by statute in New York” (id.). The court stated in its decision that
    it routinely allows genetic marker tests involving babies and toddlers
    even when the child has an acknowledged father. The court remarked
    that the statute “was obviously designed to prevent everyone from
    learning in a proper case that the legal father was indeed not the
    biological father. In decades and centuries past this intended
    protection could have worked. The reality now however is that there
    is no way to protect a child from a genetic marker test when someone
    is determined to have one.” Although a child has an interest in
    finding out the identity of his or her biological father, “in many
    instances a child also has an interest—no less powerful—in maintaining
    [his or] her relationship with the man who led [him or] her to believe
    that he is [his or] her father” (id. at 329). We conclude that Gerald
    was denied a fair hearing on the issue of equitable estoppel, and we
    therefore reverse the order, reinstate the acknowledgment of
    paternity, custody order, and petition for modification of custody,
    and vacate the second and fifth through eighth ordering paragraphs.
    We remit the matter to Family Court for further proceedings on the
    petitions before a different judge. Owing to the passage of time
    since the entry of the order on appeal, which directed Gerald to
    immediately turn the child over to the mother, we conclude that,
    pending a new determination, the maternal grandmother shall retain
    physical custody of the child.
    Entered:   December 23, 2016                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CAF 15-01025

Judges: Carni, Curran, NeMoyer, Present--Centra, Troutman

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 11/1/2024