MEMORANDUM
SUPREME COURT : QUEENS COUNTY
IA PART 52
-------------------------------X INDEX NO. 009316/82
MARLAINE OCASIO
: BY: FLUG, J.
:
- against -
:
DATE: AUGUST 25,
1999
:
JOSEPH OCASIO
:
:
-------------------------------X
The bottom line in this motion is whether it is in the best interests of a child to discontinue financial support from his father. It takes neither a Nobel prize winning economist nor a great legal scholar to answer that in the negative.
The case involves a marriage that took place in l976 and essentially ended in l979 (when the parties separated). Between the separation and the divorce (l982), the child Joseph Michael Ocasio was born (June 5, l980).
On February 5, l996 the defendant moved for an order, inter alia, declaring that Joseph Michael Occasio is not the issue of the marriage, and terminating the child support provisions. The plaintiff raised the doctrine of equitable estoppel in urging denial of this motion.
In its decision, the Court (Goldstein, J.) recognized "the paramount concern" of the underlying action to be "the welfare, stability and best interests of the child," and consequently appointed a Law Guardian and ordered a hearing "to develop facts regarding the nature of the parent/child relationship ... and whether severing or continuing this relationship would be in Joseph Michael's best interests."
The matter was referred to this Matrimonial Part, which conducted a hearing on June 23rd, with Memoranda of Law received on July 27, l999 from plaintiff's and defendant's attorneys as well the Law Guardian.
The underlying facts are essentially not in dispute. The parties married on September 4, 1976 and separated in or about June l979. During her pregnancy, the plaintiff sought a Family Court Order of Child Support. After a hearing, at which both parties testified, the Court ordered that the defendant pay child support. The defendant never raised the issue of paternity.
On June 5, 1980, the infant Joseph Michael Ocasio was born. The plaintiff and defendant were respectively named as his mother and father on the birth certificate. Notwithstanding any thoughts defendant now alleges he had regarding paternity, he admits that he never publicly denied such. Further, he failed to raise the issue in the divorce proceedings. A Judgment of Divorce was entered on August 5, l982. It declared the child to be of the marriage and referred the issue of child support to the Family Court.
Defendant's testimony at the instant hearing and his prior affidavits clearly establish that he sought the advice of an attorney regarding the divorce and indeed went with the plaintiff to one and eventually paid the attorney, who processed the matter in this Court. He admits, in his moving affidavit dated July 30, l998, that he "signed whatever documents he was told to sign" during the divorce proceedings. Next he alleges that as a result of his desire for employment with the New York City Police Department (the Transit Police), he made a decision to bring himself current with regard to arrears based on the Family Court order.
Thereafter, in or about l990, plaintiff obtained a second Family Court support order in which the defendant again failed to raise the issue of paternity. That order increased child support payments to the current bi-weekly amount of $272.00. Those payments have been continuously made through income deduction.
Three years later, (and thirteen years after the child's birth), on or about September 28, l993, defendant brought a motion in this Court for an order to compel plaintiff and child to submit to a blood grouping test. Said motion was granted on March 2, l994 on default. The results from the blood testing excluded defendant from paternity.
Based upon the results of the blood testing, defendant, in October l994, moved to have the child declared not to be of the marriage. Said motion was discontinued by stipulation without prejudice to renewal in Family Court. Thereafter, on or about July l2, l995, defendant moved in Family Court for the same relief. On September 26,l995, the Family Court issued an order (Gage, J.) denying the motion on the grounds that the Court did not have jurisdiction to modify the Divorce Judgment.
This application is no more or less than an economic consideration. The child is now nineteen years of age. He has been denied the guidance, love and affection of a male father figure and, at the age of fifteen was apprised of the fact that the man who was married to his mother at the time of his birth and whose surname he bore was not his biological father. As conceded by his Law Guardian, (and acknowledged by defendant), defendant "maintained very little contact with the subject child over the years." "A review of the child's school records and mental health evaluations reveal a significant amount of emotional turmoil which requires the child to be in a restrictive learning environment." (Law Guardian's Brief, p. 6).
Defendant has withdrawn his claims for arrears and the use of the "sirname" (sic) Ocasio. Everyone involved agrees that the child has the capacity to be self-supporting; however, he is not. The defendant asserts that the ending of child support "will have no adverse impact upon his (the child's) financial condition" (Mem. p. 6). The Court finds this conclusion preposterous, incredible and without substance. Defendant further advocates that the "only adverse impact would be upon his (the defendant's) estate ... in an effort to defend any challenge brought by the subject child!" (Mem., supra) This argument is specious.
It is well settled that the presumption of legitimacy is Aone of the strongest and most persuasive known to the law@ (Matter of Findlay, 253 NY 1),
While the blood testing settles the biological issue of the child's paternity, the law must address an entirely different concern. It will not allow a disclaimer of paternity and subsequent bastardization of a child when the sole reason for doing so is to further the self interests of the parent (i.e., to avoid paying support). (See, Mancinelli v. Mancinelli, 203 AD2d 634).
The doctrine of equitable estoppel is applicable in a paternity proceeding to prevent illegitimatizing children. (See, Matter of Ettore I. v Angela D., l27 AD2d 6; Matter of Sharon G.G. v Duane H.H., 95 AD2d 466.
"[t]he unequivocal trend ... has been to zealously safeguard the welfare, stability and best interests of the child by rejecting untimely challenges affecting his or her legitimacy." Matter of Campbell v Campbell, 149 AD2d 866).
The body of case law on the issue demonstrates that the paramount concern in this type of case is the best interests of the child (see also, Matter of Louise P. v Thomas R., 223 AD2d 592; Commr. of Social Services of Tompkins County v Gregory B., 211 AD2d 956; Matter of Barbara A.M. v Gerard J.M., 178 AD2d 412; Matter of Ettore I. v Angela D., supra; Matter of Ronald FF. v Cindy GG., 117 AD2d 332; Golser v Golser, 115 AD2d 695; Matter of June B. v Edward L., 69 AD2d 612).
At bar, the defendant assumed the status of father to this child when he:
l) allowed his name to be placed on the birth certificate,
2) failed to contest the Findings of Fact and conclusions of Law supporting the Judgment of Divorce,
3) failed to inform the Family Court hearing examiner on two occasions of his denial of paternity,
4) made child support payments for thirteen years before seeking judicial redress.
This Court therefore holds that the above are sufficient ties and reason to continue the status, notwithstanding any scientific evidence to the contrary. To permit defendant's denial of paternity at this time would not only stigmatize the child as illegitimate, but would reward the defendant for the poor judgment of the plaintiff, at the sole expense of the "innocent child." This the Court will not do!
Accordingly, the motion is denied in all respects. Settle order on notice.
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J.S.C.