The case before the Court was referred by the Support Magistrate on the issue of equitable estoppel in this paternity proceeding.

The respondent requested genetic testing for the purpose of determining whether he is actually the biological father of the children. An Attorney for the Children was assigned to represent the children. The Attorney for the Children has moved to have respondent equitably estopped from obtaining genetic testing.

Family Court Act § 418(a) and § 532(a) give the Court the authority to order genetic testing in paternity matters. It clearly states, however, that "no such test shall be ordered, however, upon a written finding by the Court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman."

Therefore, before this Court can order genetic testing, a determination under the doctrine of equitable estoppel must first be made as to whether it would be in the best interests of the child to permit the respondent to deny paternity. Family Court Act §418 (a). The doctrine of equitable estoppel "is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought." Nassau Trust Co. v. Montrose Concrete Products Corp. 56 NY2d 175, 436 N.E.2d 1265 (1982).

In paternity and child support cases, the doctrine of equitable estoppel has often been applied. "The paramount concern in applying equitable estoppel in these cases has been and continues to be, the best interests of the child." Jean Maby H. v. Joseph H., 246 AD2d 282 (2d Dep't 1998); Louise

P. v. Thomas R., 223 AD2d 592 (2d Dep't 1996); Ettore v. Angela, 127 AD2d 6 (2d Dep't 1987); Greg S. v. Keri C., 38 AD3d 905 (2d Dep't 2007).

The Court in Gutierrez v. Gutierrez-Delgado stated that the factors to be considered in determining whether the best interests of a child would be served by paternity testing include the child's interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect the testing may have on the child and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered. 33 AD3d 1133 (3d Dep't 2006).

In order to succeed on the issue of estoppel, the moving party has the burden of proving, by clear and convincing evidence, that he is entitled to invoke this doctrine. Bergner v. Kick, 85 [*2]AD2d 911 (4th Dep't. 1981), aff'd, 56 NY2d 795, 437 N.E.2d 1158 (1982); Sandra S. v. Larry W., 175 Misc 2d 122 (Family Court of New York, Bronx County, 1997). "Once there is a showing of operative facts to support estoppel, the burden shifts to the other party to show why there should not be an estoppel in the best interests of the child." Sharon G.G. v. Duane H.H., 63 NY2d 859 (3d Dep't 1983). Here, the burden shifts to the respondent to show why estoppel should not be granted.

In the instant proceeding, the Attorney for the Children is requesting an order from this Court estopping the genetic testing requested by the respondent. In his affirmation, the Attorney for the Children states he interviewed the children in April 2007. They are fraternal twins and will not turn

four (4) years old until August of 2008. The children's attorney indicates that despite his clients' "limited verbal skills" he was able to determine that the children know the respondent as "Daddy." The Attorney for the Children states that he "was also able to determine" that the children share the respondent's sur-name; that respondent was present at the hospital at the time of the children's

birth; that respondent visited the children alternate weekends for an approximate one year period when the parties resided in Maryland (the age of the children during the alleged time period is not indicated); and that respondent promised to visit the children, although few if any visits have actually occurred. Additionally, the Attorney for the Children avers that upon information and belief no other person has represented himself as the father of the children.

The respondent's papers state that he was never married to petitioner, nor were they in a monogamous relationship. Respondent asserts that, when the petitioner was about five months pregnant, the parties agreed that no acknowledgment of paternity would be made until DNA testing indicated that respondent was in fact the father. Additionally, the respondent contends that for the past four (4) years his efforts to obtain DNA testing were impeded by the petitioner's constant relocations. Respondent concedes that he did travel to Maryland about four (4) times during a one year period for the purpose of visiting his family and had briefly stopped by petitioner's home for the purpose of requesting the DNA testing. Respondent states that during these visits he never engaged in behavior which could be construed as representing himself as the twins' father.

The petitioner's attorney has submitted papers in support of the Attorney for the Children's application. Petitioner asserts the following: that she was monogamous in her relationship with the respondent; that she immediately informed respondent of her pregnancy, as she debated whether or not to remain pregnant; that both the respondent and respondent's mother traveled to Connecticut for the children's birth and that they both assisted with the children in the hospital. Petitioner contends that the respondent saw the children frequently, including alternate weekends, and that his mother assisted with babysitting. Further, petitioner asserts that respondent attended

birthday parties and paid $400 per month in child support without a court order.

Upon review of the court file, the Court notes that annexed to the petitioner's paternity [*3]petition is a copy of the children's birth certificate which lists the father as "unknown." The petitioner had previously filed a paternity proceeding against this respondent regarding these children on or about December 19, 2007. The matter was dismissed by order of Support Magistrate, dated January 23, 2008, for failure to prosecute, as the petitioner failed to appear in court on her petition. The petitioner re-filed the underlying petition on January 28, 2008. The court file also indicates that the petitioner has a confidential address.

As previously stated, the movant, which in this case is the Attorney for the Children, bears the burden of proving by clear and convincing evidence that he is entitled to invoke the doctrine of equitable estoppel. He has failed to meet that burden. The facts alleged by the Attorney for the Children are not substantial enough to invoke the doctrine of equitable estoppel. The Attorney for the Children's papers lack any evidentiary proof or foundation. His affirmation contains mere conclusions and fails to allege specific conduct, reliance or harm. Shondel J. v. Mark D. 7 NY3d 320 (2006). In fact, the information that the Attorney for the Children relies upon is seemingly provided by the petitioner mother. The Court does not find that the children's attorney would be able to "determine" certain information stated in his affirmation from clients who were approximately three and a half (3 ½ ) years of age with "limited verbal skills" at the time of his interview with them.

Petitioner's papers also fail to provide any evidentiary proof or to allege any reliance or harm. There are no specific dates or time frames provided as to what period of time the respondent visited the children on a regular basis, the age of the twins during the time period of the alleged visits and/or

when and how long respondent was paying child support. The petitioner avers that respondent was present at the hospital for the birth, had regular parenting time and attended birthday parties. However, the petitioner has not provided one photograph, receipt or tangible item of proof to document her allegations. While petitioner states that the twins "carry his surname", the birth certificate lists the father as "unknown."

Additionally, the court's docket has the petitioner's address listed as "confidential." Maintaining a confidential address is significant. It indicates that she is thwarting any consistency or regularity in a relationship between respondent and the children. Petitioner's claim that the respondent has visited the children and has maintained a consistent relationship with the children is disingenuous in light of her listing her address as confidential. Finally, the respondent stated that his efforts to obtain the promised DNA testing from the petitioner was impeded by her constant moves. A reading of all papers and the underlying petition places the petitioner and children in at least three (3) different states from the time of petitioner's pregnancy to the time of the filing of this paternity petition.

This is not to say that the respondent's papers are any more sufficient than the movant's nor the petitioner's supporting papers. Notwithstanding, the respondent's self serving statements, the burden does not shift to the respondent until such time that the movant has made a prima facie showing that he is entitled to invoke the doctrine by clear and convincing evidence.

In light of the insufficiencies of the evidence, on behalf of the children, the application to estop the respondent's request for genetic testing is denied. [*4]

It is hereby;

ORDERED, that both parties and the children are to be produced in Court on Wednesday June 18, 2008 at 9:30 a.m., for the purpose of having a genetic marker test conducted; and it is hereby further

ORDERED, that both parties and all counsel are to appear before this Court on

August 18, 2008 at 9:30 a.m., for the purpose of obtaining the results of the genetic marker test.

This Constitutes the Decision and Order of the Court.

E N T E R:

________________________

Honorable Ellen R. Greenberg

Judge of the Family Court

Dated:June 16, 2008