                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     520230
________________________________

In the Matter of JOHN J.,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

KAYLA I. et al.,
                    Appellants.
________________________________


Calendar Date:   February 8, 2016

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

                              __________


     Kayla I., Malone, appellant pro se.

     Alexander Lesyk, Norwood, for William I., appellant.

     Adam R. Matteson, Lowville, attorney for the child.

     Barry J. Jones, Hudson Falls, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of St. Lawrence
County (Richards, J.), entered December 5, 2014, which, among
other things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 5, to adjudicate petitioner as
the father of a child born to respondent Kayla I.

      Respondents Kayla I. (hereinafter the mother) and William
I. (hereinafter the husband) are a married couple who were
separated in 2011 when the mother engaged in a sexual
relationship with petitioner. She became pregnant, reconciled
with the husband and, in August 2012, gave birth to a child.
Four days later, the child was placed in foster care and
                              -2-                520230

respondents were found to have derivatively neglected him.
Within six weeks of the child's birth, petitioner commenced this
paternity proceeding to establish that he is the child's
biological father. The husband joined issue, seeking dismissal
of the petition on equitable estoppel grounds. Based upon the
parties' submissions, Family Court (Morris, J.) ordered genetic
marker testing, which revealed a 99.99% likelihood that
petitioner is the child's father.

      Subsequently, upon recusal and reassignment of the
proceeding, Family Court (Richards, J.) held a full hearing on
the issue of equitable estoppel. At the conclusion of the
hearing, the court rejected the husband's argument and declined
to apply the doctrine. Immediately thereafter, a trial was held
on the underlying petition, after which Family Court found that
petitioner had established his paternity, and an order of
filiation was entered declaring him to be the father of the
child. Respondents appeal, and we affirm.

      Initially, we note that Family Court should have held the
hearing on the issue of equitable estoppel before ordering
genetic marker testing. "The fact that testing was conducted,
however, does not bar the court from thereafter deciding the
estoppel issue" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d
1, 6 n [2010]; see Matter of Shondell J. v Mark D., 7 NY3d 320,
330 [2006]; Matter of Richard W. v Roberta Y., 240 AD2d 812, 814
[1997], lv denied 90 NY2d 809 [1997]).

      "'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 Patrick A. v Rochelle B., 135 AD3d 1025,
1026 [2016], quoting Matter of Edward WW. v Diana XX., 79 AD3d
1181, 1182 [2010]; see Matter of Juanita A. v Kenneth Mark N., 15
NY3d at 6). "The courts 'impose equitable estoppel to protect
the status interests of a child in an already recognized and
operative parent-child relationship'" (Matter of Shondell J. v
Mark D., 7 NY3d at 327, quoting Matter of Baby Boy C., 84 NY2d
91, 102 n [1994]). While respondents rely heavily upon the
husband's efforts to support the mother during her pregnancy and
                              -3-                520230

to prepare for the arrival of the child, and we have said that
such efforts are relevant to an equitable estoppel defense, they
are ancillary to the "assumption of the actual physical and
psychological burdens attendant to parenting a newborn" (Matter
of Richard W. v Roberta Y., 240 AD2d at 814). Put differently,
it is the child's reliance upon a representation of paternity
that is our primary consideration (see e.g. Matter of Dustin G. v
Melissa I., 69 AD3d 1019, 1020 [2010], lv denied 14 NY3d 708
[2010]).

      Here, the child has been in foster care since he was four
days old. Regardless of the evidence that the husband has
provided the child with food, clothing, toys and affection, and
that the child has referred to him as "daddy," he admitted that
the child has never spent the night at his residence and that he
only sees the child during daytime supervised visitations, which
fluctuate in their frequency and have never totaled more than 10
hours per week. The husband further admitted that his weekly
time with the child was reduced as the result of his failure to
show up on a number of occasions. Significantly, even if it
could be said that the now 2½-year-old child developed some
measure of reliance on the husband's representation of paternity
(see Matter of Stephen W. v Christina X., 80 AD3d 1083, 1084-1086
[2011], lv denied 16 NY3d 712 [2011]; Matter of Savel v Shields,
58 AD3d 1083, 1084 [2009]), petitioner did not acquiesce in the
development of that relationship, inasmuch as he promptly
commenced this proceeding asserting his own paternity just six
weeks after the child was born (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 at 1020;
Matter of Kristen D. v Stephen D., 280 AD2d 717, 718-719 [2001]).
Thus, we find that the husband and the child were not in a
recognized and operative parent-child relationship, and that
Family Court properly dismissed respondents' equitable estoppel
defense and entered the order of filiation in favor of petitioner
(see Matter of Starla D. v Jeremy E., 95 AD3d 1605, 1606-1607
[2012], lv dismissed 19 NY3d 1015 [2012]; cf. Matter of Patrick
A. v Rochelle B., 135 AD3d at 1026-1028).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
                        -4-                  520230

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
