Defendant JR moves for an order: (1) modifying the Judgment of Divorce to remove any reference to JABR (the Child) as defendant's child; (2) removing any and all obligations of defendant to pay child support for the Child; (3) directing the Office of Child Support Enforcement to stop any action to enforce payment of child support arrears of the defendant for the Child; (4) requiring the plaintiff PT (Mother) to repay all past child support payments made by defendant; and (5) requiring the Mother to pay attorneys' fees, costs and disbursements for this action. The Mother has not submitted any opposition papers, and defendant has submitted an affidavit of service indicating that a copy of the motion was mailed both to her at her last known address, and to the attorney who represented her in the divorce action. The Court will decide the motion on default, solely on defendant's papers.

FINDINGS OF FACT

The Court makes the following findings of fact, based on the statements in defendant's papers. The plaintiff and defendant were married on April 15, 2002 but only began to live together in February 2003. The Child was born on November 15, 2002. On June 2, 2003, the Family Court ordered defendant to pay $44 per week for child support. The Mother commenced a divorce action on January 26, 2004 based on cruel and inhuman treatment. By judgment dated August 30, 2004, the Supreme Court granted the Mother a divorce on defendant's default, and incorporated the terms of the Family Court child support order.

On December 10, 2004, defendant filed a summons and petition for visitation in Family Court. As the visitation case was proceeding, defendant began to question whether he was the biological father of the Child. On February 10, 2005, defendant took the Child for a DNA test, which excluded the defendant as the biological father of the Child. Since February 2005, neither defendant not his family has had any communication with the Child. [*2]

ARGUMENT

The defendant argues that the DNA test constitutes new evidence that warrants modifying the judgment to delete the provisions relating to the Child under CPLR 5015(a)(2). Since the Child was born during the marriage, there is a rebuttable presumption that defendant is the Child's biological father, which can only be overcome "by clear and convincing evidence excluding the husband as the father" (Barbara S. v Michael I.,, 24 AD3d 451 [2nd Dept 2005]). In this case, I find that the DNA test constitutes sufficient evidence to overcome the presumption, and that the judgment should be modified pursuant to CPLR 5015(1)(2).

Even upon a showing that he is not the biological father, a father could be equitably estopped from denying paternity upon a showing that it is in the child's best interests (Shondel J. v Mark D., 7 NY3d 320, 328 [2006]; Ocasio v Ocasio, 276 AD2d 680 [2nd Dept 2000]). In this case, however, the Mother has not made any showing that it would be in the Child's best interests for the defendant to be estopped from denying paternity. Moreover, in light of the Mother's failure to appear, the Court accepts as true the defendant's claim that his ties with the Child are not significant, and thus that the Child would not be harmed by his denial of paternity (cf. Shondel J., 7 NY3d at 328). Thus, the Court grants that portion of the motion seeking to modify the Judgment of Divorce by deleting the provisions regarding the Child, and relieving the defendant of any obligation for child support, retroactive to January 17, 2007, the date of service of this motion.

Defendant has also requested that he be relieved of any obligation for child support arrears. However, the Court only has authority to relieve defendant of child support obligations from the date of service of this motion. Similarly, the Court denies defendant's request for repayment of child support payments already made. Finally, the Court denies defendant's application for attorneys' fees since it is not supported by proper papers (22 NYCRR 202.16[k]).

Accordingly, it is hereby

Ordered that the Judgment of Divorce is modified to provide that there are no children of the marriage, and to delete the provisions stating that JABR is defendant's Child; and it is further

Ordered that the Judgment of Divorce is modified to delete any provision obligating defendant to pay child support for the Child; and it is further

Ordered that the Office of Child Support Enforcement shall stop any action to enforce payment of child support for the Child prospectively; and it is further

Ordered that the Office of Child Support Enforcement shall stop any action to enforce payment of child support arrears for the Child which accrued after January 17, 2007, the date of service of this application.

This constitutes the decision and order of the Court. [*3]

Dated: May 2, 2007So Ordered:

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J.S.C.