This combined paternity and child support proceeding was commenced by petition filed on December 17, 2008. The petitioner, Marilu T., alleges that the respondent, Jose C., is the father of her daughter, Desiree T., who was born on July 5, 1998. Petitioner seeks entry of an order adjudicating respondent's paternity of the child as well as an order directing that respondent contribute to the child's support. Respondent has denied paternity and he opposes petitioner's application for genetic testing.

On February 17, 2010 the parties, respondent's counsel, and petitioner's former husband appeared before a Support Magistrate of this Court and the case was thereafter referred to the [*2]

assigned Support Magistrate. On May 6, 2010 the assigned Magistrate received testimony concerning whether Desiree is a child of petitioner's former marriage to Tomas V. During the proceedings, Ms. T. submitted a copy of a December 27, 2000 judgment of divorce entered by the Supreme Court, New York County (Liebman, Spec. Ref.) in the case of Marilu V. v. Tomas V. That judgment recites that the divorce was granted upon the ground of abandonment and that there is one minor child of the marriage, Aileen V. (born June 7, 1989). Although the subject child Desiree was born while petitioner was married to Mr. V., she is not mentioned in the pleadings filed in the divorce action as a child of the marriage, and the judgment of divorce was issued in conformity with those pleadings.^[FN1]

Petitioner's former husband Tomas V. testified that although Desiree T. was born while he was married to the petitioner, he is not the father of that child, and his name does not appear as the father on her birth certificate (see, Public Health Law §4135 [2]). According to Mr. V., he and Ms. T. separated in 1994 and they did not engage in sexual relations subsequent to that separation, and petitioner confirmed the sworn testimony of Mr. V. Based upon the evidence presented the Support Magistrate found that the presumption of legitimacy had been rebutted with respect to Desiree.

Respondent maintained his denial of paternity and he argued that petitioner should be barred from pursuing this paternity proceeding against him on the basis of equitable estoppel The Support Magistrate then proceeded to appoint an attorney for Desiree (Fam. Ct. Act §249 [a]) and the case was adjourned for the attorney for the child to present his report. On October 6, 2010 the attorney for the child reported that Desiree, who is 12 years old, believes that the [*3]

respondent, Mr. C. is her father and that he found no basis to invoke the doctrine of equitable estoppel to prevent the mother from proceeding with this paternity action.

The Support Magistrate thereafter transferred this proceeding to this Court as mandated by Family Court Act §439 (a) and (b) (see, Matter of Marilene S. v. David H., 63 AD3d 949, 950). A preliminary conference was conducted on December 9, 2010 and January 13, 2011, and respondent's position has remained unchanged in he denies paternity of the child, he opposes an order directing deoxyribonucleic acid (DNA) testing, and he maintains that petitioner should be barred from proceeding upon this petition on the ground of equitable estoppel. The Court then issued an order referring the issue of whether equitable estoppel should be applied in this case to Judge Guy P. DePhillips, a Judicial Hearing Officer of the Court, for hearing and report or determination in accordance with Civil Practice Law and Rules §4317 (see, Matter of Heather J., 244 AD2d 762, 763; Matter of Johnson v. Streich-McConnell, 66 AD3d 1526, 1527; Matter of McDonald v. Reed, 68 AD3d 1181, lv denied 14 NY3d 758).

The case was referred back to this Court by Judge DePhillips on March 30, 2011 as he was unable to complete the assigned reference prior to the suspension of the Judicial Hearing Officer program as of April 1, 2011. On March 30, 2011, the scheduled appearance date before Judge DePhillips, the parties and the attorney for the child were present but respondent's attorney reported that he had a conflicting engagement in another court and he was unable to appear. Accordingly, the case was adjourned until the next day, March 31, 2011, at 2:15 P.M. when the parties and both attorneys were directed to appear.

The parties, respondent's attorney, and the attorney for the child appeared before this Court on March 31, 2011. At that time the Court observed that petitioner and her former husband [*4]

were divorced, that the December 27, 2000 judgment of divorce does not list the child Desiree, who was born on July 5, 1998, as a child of the marriage. Additionally, the evidence adduced before the Support Magistrate established that petitioner and her former husband had separated sometime in 1994 and that they had not engaged in sexual relations since their separation. While the Supreme Court did not litigate the issue of whether Desiree is the issue of petitioner's former marriage to Mr. V., that Court did not name Desiree as a marital child in the judgment of divorce.

"While a child born during marriage is presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and most persuasive known to the law" (Matter of Carl Henry P. v. Tiwiana L., ___ AD3d ___, 2011 NY Slip Op 02681; see also, Matter of Findlay, 250 NY 1, 7; Matter of Fay's Estate, 44 NY2d 137, 142; Matter of Constance G. v. Herbert Lewis L., 119 AD2d 209, 211, app dismissed 70 NY2d 667; Matter of Walker v. Covington, 287 AD2d 572, lv denied 97 NY2d 608; Matter of Barbara S. v.

Michael I., 24 AD3d 451, 452; Marilene S. v. David H. at 950), the presumption may be rebutted by clear and convincing evidenceof the husband's non-paternity, such as testimony of non- access by one or both of the spouses or the results of genetic testing which exclude the husband (Matter of Ghaznavi v. Gordon, 163 AD2d 194, 195; Matter of Johnson v. Jones, 247 AD2d 617; Walker v. Covington at 572; Barbara S. v. Michael I. at 452; Marilene S. v. David H. at 950).

Here the Support Magistrate properly determined that petitioner's former husband isnot Desiree's biological father based upon the fact that the Supreme Court divorce judgment does not name Desiree as a marital child, and the former husband's testimony of non-access at the time the child was conceived, and his statement that he and Ms. T. separated in 1994 and that they did not engage in sexual relations after their separation. [*5]

The doctrine of equitable estoppel is clearly applicable to paternity proceedings. "New Yorkcourts have long applied the doctrine of estoppel to paternity and support proceedings. Our reason has been and continues to be the best interests of the child" (Matter of Shondel J. v. Mark D., 7 NY3d 320, 327; see also, Matter of Jose F.R. v. Reina C.A., 46 AD3d 564; Matter of Antonio H., 51 AD3d 1022, 1023; Matter of Juan A. v. Rosemarie N., 55 AD3d 827; Matter of Smythe v. Worley, 72 AD3d 977, 978).

The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and the loss of prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position (Shondel J. at 326). Thus, in the area of paternity and child support litigation, equitable estoppel may be applied "as it was in Shondel J. to prevent a man from avoiding child support by claiming that he is not the child's biological father [where] the man has represented himself to be the child's father and the child's best interests are served by a declaration of fatherhood" (Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 5; Shondel J. at 327). Equitable estoppel may also be invoked to prevent a mother from challenging a husband's paternity of a child where the mother has previously held her husband out as the father of the child, and there is a functioning parent- child relationship in existence (Shondel J. at 327). Additionally, "[e]stoppel may also preclude a man who claims to be a child's biological father from asserting his paternity when he has acquiesced in the establishment of a strong parent-child bond between the child and another man (id.). Lastly, equitable estoppel may be invoked by an alleged father who may assert that the [*6]

mother should be estopped from seeking a declaration of paternity against him because the >mother has allowed a parent-child relationship to develop between the child and another man (Juanita A. at 5).

In this instance, respondent claims that Ms. T. should be estopped from asserting her claim of paternity against him because she has allowed another man to act as Desiree's father and that there is a functioning parent-child relationship between Desiree and the "other man". The evidence in the record establishes that petitioner's former husband, Tomas V., is not Desiree's biological father and neither the mother nor the child (through her attorney) assert that there is a father-daughter relationship between Desiree and Tomas. The evidence which was adduced establishes that Ms. T. and Mr. V. physically separated prior to the conception and birth of Desiree and that they have been divorced since the child is 2 years old. Desiree's attorney reported that she believes that Mr. C. is her father and that the child does not have a father-child relationship with any other man.

While "[t]he same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it" (Juanita A. at 6), "equitable estoppel is only to be used to protect the best interests of the child" (id.), such as where the child's mother has acquiesced in or encouraged the development of a father-child relationship with a man other than the alleged father "and it would be detrimental to the child's interests to disrupt that relationship" (id.).The applicability of equitable estoppel does not turn on the equities between or among the adults involved in the case. Rather, the applicability of equitable estoppel is determined solely upon the best interests of the child involved (Shondel J. at 330-331; Matter of Marilyn C.Y. v. Mark NY, 64 AD3d 646, 646; Matter of Dustin G. v. [*7]

Melissa I., 69 AD3d 1019, 1020, lv denied 14 NY3d 708).

"The party raising the doctrine of equitable estoppel— here, the [putative father]— has the initial burden of establishing a prima facie case sufficient to support that claim" (Matter of Edward WW. v. Diana XX., 79 AD3d 1181, 1182). Therefore, in order to invoke equitable estoppel as a defense to a paternity petition the putative father must establish that the relevant facts supporting imposition of an estoppel exist, and he must also demonstrate that invocation of the doctrine will be in the best interests of the child (see, Juanita A. at 6). Respondent has made neither showing here. After it became apparent that he would be unable to establish the existence of a functioning and ongoing father-daughter relationship between Desiree and Mr. V., the respondent's position apparently became that some other "unknown and unidentified" male has acted and is acting as Desiree's father. However, this claim was contradicted by the mother's sworn statements as well as by Desiree's attorney who reported that Mr. C. is the only man she believes to be her father, and that no other man has acted or is acting as the child's father.

Therefore, respondent has failed to establish the existence of facts which would support the imposition of an estoppel against the mother, and he has also failed to demonstrate that invocation of equitable estoppel is necessary in order to protect the best interests of the child. It is not enough to simply announce the words "equitable estoppel" in order to bring a paternity proceeding to a permanent halt. Rather, there must be some offer of proof made in support of the claimed defense or it is subject to dismissal (see, Civil Practice Law and Rules §3211 [b]; e.g., Butler v. Catinella, 58 AD3d 145, 147-148; Galasso, Langione & Botter, LLP v. Liotta, 81 AD3d 880, 882). Under these circumstances, even after giving the respondent the benefit of every reasonable inference, the objection to the entry of an order directing DNA testing of the [*8]

parties and child must be overruled.

It is therefore,

ORDERED, that respondent's objection to the entry of an order directing that the parties and the subject child submit to DNA testing is denied as the Court does not find that such testing should be precluded by equitable estoppel or the presumption of legitimacy (Fam. Ct. Act §532 [a]); and it is further

ORDERED, that the parties and the subject child are hereby directed to appear for DNA testing at such time and place as shall be directed by the Clerk of Court who shall schedule such testing and advise the parties thereof (Fam. Ct. Act §532 [a]).

This constitutes the decision and order of the Court.

ENTER:

_____________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

April 4, 2011