        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1091
CAF 14-00713
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF JOYCE S., PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

KEVIN M. AND ROBERT S., RESPONDENTS-RESPONDENTS.


MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT.

KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-RESPONDENT ROBERT S.

JENNIFER M. LORENZ, ATTORNEY FOR THE CHILD, LANCASTER.


     Appeal from an order of the Family Court, Wyoming County (Michael
F. Griffith, J.), entered August 15, 2013 in a proceeding pursuant to
Family Court Act article 5. The order dismissed the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding pursuant to
article 5 of the Family Court Act, seeking a determination that
respondent Kevin M. is the biological father of the subject child.
Petitioner appeals from an order granting the motion of respondent
Robert S. to dismiss the petition based on the doctrine of equitable
estoppel. Contrary to petitioner’s contention, Family Court properly
determined that petitioner was equitably estopped from asserting
paternity on behalf of Kevin, based on the best interests of the child
(see generally Matter of Shondel J. v Mark D., 7 NY3d 320, 326). The
court properly conducted a hearing to determine whether the best
interests of the child required the application of that doctrine (see
generally Matter of Tracy C.O. v Douglas A.F., 66 AD3d 1390, 1392),
and the evidence from that hearing supports the court’s conclusion
that Kevin does not have any meaningful bond with the subject child.
The evidence also supports the court’s further conclusion that the
child recognized Robert as her father for her entire life until
petitioner attempted to remove Robert from the child’s life, that
petitioner permitted Robert to be the child’s primary caregiver and to
develop a close and loving bond with Robert during that time, and that
it would be “detrimental to the child’s interests to disrupt her close
relationship” with Robert (Matter of Fidel A. v Sharon N., 71 AD3d
437, 437; see Matter of John S. v Imari W., 121 AD3d 538, 538).
Indeed, we note that Kevin admittedly did not visit the subject child
for the seven months prior to the hearing on this issue, despite the
fact that petitioner had custody of the child for the majority of that
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                                                        CAF 14-00713

time. Thus, we agree with Robert and the Attorney for the Child that
the court properly applied the doctrine of equitable estoppel to bar
petitioner from challenging Robert’s paternity.




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
