                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    520259
________________________________

In the Matter of WILLIAM X.,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

LINDA Y.,
                    Respondent.
________________________________


Calendar Date:    September 9, 2015

Before:    Peters, P.J., Lahtinen, Garry and Rose, JJ.

                              __________


     Robert A. DiNieri, Clyde, for appellant.

     Teresa C. Mulliken, Harpersfield, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered July 23, 2014, which dismissed petitioner's
application, in a proceeding pursuant to Family Ct Act article 5,
to vacate a prior acknowledgment of paternity.

      Petitioner and respondent were involved in a short-lived
relationship that began in 2000, when respondent's child was six
months old. Before their relationship ended, petitioner was
incarcerated, during which time he signed an acknowledgment of
paternity declaring himself to be the father of the child. In
2013, after petitioner had initiated a number of unavailing
efforts to vacate his acknowledgment, none of which actually
litigated the issue of his paternity, he commenced this vacatur
proceeding. Following a fact-finding hearing, a Support
Magistrate found that petitioner had executed his acknowledgment
under duress and referred the matter to Family Court, which
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accepted the finding of duress but dismissed the petition on the
ground that ordering a genetic marker test would not be in the
best interests of the child. Petitioner appeals and we now
reverse.

      Where, as here, "the petitioner proves to the court that
the acknowledgment of paternity was signed under . . . duress,
. . . the court shall then order genetic marker tests or DNA
tests for the determination of the child's paternity" unless the
court finds that doing so "is not in the best interests of the
child" (Family Ct Act § 516-a [b] [iv]; see Family Ct Act § 532
[a]). Although Family Court did not specifically articulate the
doctrine of equitable estoppel, it held that petitioner had
engaged in a course of conduct that "effectively precluded any
effort to establish that someone else is [the child's] father,"
and that granting the petition would "foreclos[e] any parental
support from any source other than [respondent] or public funds."

      While we agree that the likelihood of discovering the
identity of a child's biological father is a relevant
consideration in this context (see Matter of Gutierrez v
Gutierrez-Delgado, 33 AD3d 1133, 1134 [2006]), the record reveals
no preclusive conduct by petitioner. Rather, it establishes that
petitioner and the child have no relationship of any kind,
petitioner had not seen the then-14-year-old child in
approximately 12 years and he had not spoken to respondent or the
child in seven years. The attorney for the child stated to the
Support Magistrate that her client "does not have a relationship
with [petitioner] and that he in fact would support the vacating
of the acknowledgment of paternity."

      Furthermore, Family Court's rationale that vacating the
acknowledgment would leave the child without support from any
parental source other than respondent has no basis in the record,
as the attorney for the child also stated that respondent is now
married and the child "has a father figure in his step-father."
"In short, the record fails to establish that the child 'would
suffer irreparable loss of status, destruction of his family
image, or other harm to his physical or emotional well-being if
this proceeding were permitted to go forward" (Matter of Starla
D. v Jeremy E., 95 AD3d 1605, 1607 [2012], lv dismissed 19 NY3d
                              -3-                  520259

1015 [2012] [internal quotation marks, brackets and citations
omitted]). Accordingly, we find that DNA testing to definitively
determine petitioner's parental status is in the child's best
interests and we remit the matter for entry of an order in
accordance with Family Ct Act § 516-a (b) (iv).

     Peters, P.J., Lahtinen and Garry, JJ., concur.



      ORDERED that the order is reversed, on the law and the
facts, without costs, and matter remitted to the Family Court of
Delaware County for further proceedings not inconsistent with
this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
