                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   520461
_________________________________

In the Matter of PATRICK A.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROCHELLE B.,
                    Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   November 16, 2015

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Clark, JJ.

                             __________


     Samuel D. Castellino, Big Flats, for appellant.

     Andrea Mooney, Ithaca, attorney for the children.

                             __________


Egan Jr., J.

      Appeal, by permission, from an order of the Family Court of
Cortland County (Revoir Jr., J.), entered January 26, 2015,
which, in two proceedings pursuant to Family Ct Act article 5,
ordered genetic testing for the purpose of establishing
petitioner's paternity of respondent's children.

      Petitioner and respondent had an intimate relationship
beginning in 2002 and, in February 2005, respondent gave birth to
twin girls. According to respondent, petitioner, who was one of
four individuals who potentially could be the girls' father, was
present for the birth but declined to sign an acknowledgment of
paternity due to financial concerns. The record reflects that
petitioner either lived with or otherwise had some degree of
contact with respondent's daughters until December 2013, at which
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time respondent purportedly cut off all contact. Thereafter, in
July 2014, petitioner commenced the instant proceedings seeking
an order of filiation declaring that he is the father of
respondent's twin girls. Respondent and the attorney for the
children opposed the petitions – with the attorney for the
children taking the position that petitioner should be equitably
estopped from asserting his paternity. A fact-finding hearing
ensued, at the conclusion of which Family Court found that
equitable estoppel did not apply here and ordered a genetic
marker test to determine whether petitioner is the girls'
biological father. This appeal by respondent ensued.1

      "The doctrine of equitable estoppel 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 Edward WW. v Diana XX., 79 AD3d 1181,
1182 [2010] [internal quotation marks and citations omitted]; see
Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 6 [2010];
Matter of Stephen W. v Christina X., 80 AD3d 1083, 1085 [2011],
lv denied 16 NY3d 712 [2011]). The party asserting application
of the doctrine – here, the attorney for the children – "has the
initial burden of establishing a prima facie case to support that
claim" (Matter of Edward WW. v Diana XX., 79 AD3d at 1182; see
Matter of Starla D. v Jeremy E., 95 AD3d 1605, 1606 [2012], lv
dismissed 19 NY3d 1015 [2012]). Assuming that burden is met, the
burden then shifts to the nonmoving party – here, petitioner – to
establish that it would be in the best interests of the children
to order the genetic marker test (see Matter of Edward WW. v
Diana XX., 79 AD3d at 1182).

      Assuming, without deciding, that the attorney for the
children may raise such a defense on behalf of respondent's
children in the first instance, we agree with Family Court that
application of the doctrine of equitable estoppel is not
warranted here. Although the children's therapist testified on


     1
        This Court granted respondent permission to appeal from
Family Court's nondispositional order and, further, granted
respondent's application for a stay pending appeal.
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direct (and respondent testified on rebuttal) that the girls do
not recognize petitioner as their father, "[n]oticeably absent
from the record is any indication that [another identified
individual] played a significant role in raising, nuturing or
caring for [respondent's children]" (Matter of Starla D. v Jeremy
E., 95 AD3d at 1607 [internal quotation marks and citation
omitted]). To the contrary, both the therapist and respondent
acknowledged that the children identified a number of individuals
as "father figures" in their lives (see id.). Hence,
establishing petitioner's paternity would not disrupt an existing
parent-child relationship between the children and another
individual (compare Matter of Mark T. v Joyanna U., 70 AD3d 1068,
1069-1070 [2010], lv denied 15 NY3d 715 [2010]; Matter of Dustin
G. v Melissa I., 69 AD3d 1019, 1020 [2010], lv denied 14 NY3d 708
[2010]).

      As for petitioner's level of involvement with the children
prior to the commencement of these proceedings, the parties
admittedly presented divergent accounts of petitioner's
interaction with the girls. Petitioner testified that he lived
with respondent from 2002 until he was incarcerated in state
prison in February 2010 – subject to brief periods of time when
he either removed himself from the residence or was incarcerated
in the local jail – and that he again lived with respondent after
his release from prison in December 2011. Following their birth
in 2005, petitioner testified, he helped with the children on a
regular basis – making breakfast for them, caring for them while
respondent was at work, building a swing set for them and
attending certain school functions. Petitioner also testified –
without contradiction – that he spoke with the girls twice a week
during the 22 months that he was incarcerated in state prison.
Petitioner further testified that he met with the girls'
therapist on four occasions.2 In November 2012, petitioner "got
in some trouble," as a result of which he spent six months in
jail and seven months in a rehabilitation facility. Petitioner


    2
        The therapist testified as to two such meetings – one
following petitioner's release from prison "because . . . he was
going to be living at [respondent's] house" and one in or about
December 2011 to formulate a behavior plan for the girls.
                              -4-                520461

testified that, during his last three months in rehab, he spoke
with the girls on the phone and respondent brought the girls to
see him six or seven times. Prior to the hearing, petitioner
last saw the girls at a school concert in December 2013, and it
appears that he delayed the commencement of these proceedings
because he was, up until that time, seeing and/or speaking with
the girls on a regular basis. Respondent did not contest
petitioner's claims regarding his phone contact with the girls,
but otherwise downplayed the role that petitioner played in their
lives – contending that petitioner only lived with her
approximately 29 months between 2002 and 2012, that she only took
the girls to see petitioner twice while he was in rehab and that
petitioner only attended two school functions.

      Upon reviewing the record, and according "due deference to
Family Court's credibility determinations" (Matter of Zahuranec v
Zahuranec, 132 AD3d 1175, 1177 [2015]), we agree with Family
Court that "there is simply no beneficial parent-child
relationship [between the children and another individual]
requiring estoppel's protection." Although the attorney for the
children, relying upon the therapist's testimony and petitioner's
criminal history, argues that it would be detrimental to the
children's best interests to proceed with the genetic marker
testing, two points are worth noting. First, the attorney for
the children failed to make out a prima facie case for
application of the doctrine of equitable estoppel; hence, the
burden never shifted to petitioner to establish that the
requested testing would be in the children's best interests.
More to the point, even assuming that the children's best
interests represent the overarching inquiry here, given
petitioner's long-standing relationship with the children, we are
hard pressed to discern the negative impact of formally
identifying him as the girls' father. Accordingly, we perceive
no basis upon which to disturb Family Court's decision to order
the genetic marker testing. Respondent's remaining arguments,
including her assertion that Family Court abused its discretion
in failing to conduct a Lincoln hearing in these matters, have
been examined and found to be lacking in merit.

     McCarthy, J.P., Rose, Lynch and Clark, JJ., concur.
                        -5-                  520461

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
