        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
