In the Matter
of a Proceeding for Paternity Under Article 5 of the Family Court Act D.L., Petitioner,
against
P.H. and K.L., Respondents.
In the Matter of a Proceeding for Proceeding Under Article 5 of the Family Court Act
P.H., Petitioner,
against
K.L. and D.L., Respondents.
|
P-00103-14
Petitioner's Counsel:
Kevin F. Nichols, Esq.
Nichols Law Firm, PLLC
16 Elm Street
Malone, New York 12953
Counsel for Respondent P.H.:
Thomas B. Wheeler, Esq.
Attorney at Law
Aubuchon Mall
63 Market Street
P.O. Box 506
Potsdam, New York 13676-0506
Counsel for Respondent K.L.:
Stephen A. Vanier, Esq.
Poissant, Nichols, Grue & Vanier, P.C.
367 West Main Street
Malone, New York 12953
Attorney for the Child:
Tammy L. Gordon, Esq.
Franklin County Children's Law Office
436 East Main Street
Malone, New York 12953
Robert G. Main Jr., J.
Two separate paternity petitions, involving the same child, are pending in this Court
having been transferred here from the Family Court of the County of St. Lawrence where
they were each originally filed. The first, filed by petitioner D.L. (hereinafter "the
mother") on December 2, 2013, names both P.H. (hereinafter "the putative father") and
her husband, K.L. (hereinafter "the presumptive father") as respondents. In the second,
filed on January 22, 2014, the putative father seeks a order of filiation declaring him to
be the father of the child, Lauren "L." who was born on November 24, 2010, and who is
the subject of these competing petitions.
A first appearance on the mother's petition was presided over by Support
Magistrate Jonathan A. Heussi, Esq. on [*2]February 10,
2014.[FN1]
At that appearance, counsel for the presumptive father requested that the matter be
presided over by a judge of the Family Court, as it was the presumptive father's stated
intention to raise the issue of equitable estoppel which can only be decided by a judge.
For that reason, the Support Magistrate issued an order referring the matter for an
appearance before this Court on March 4, 2014. Based upon the Support Magistrate's
recommendation, the Court appointed an attorney for the child.
At the March 4th appearance, the parties were unable to come to a resolution
of the proceedings, as the presumptive father's counsel continued to assert that the
doctrine of equitable estoppel precluded both the mother and the putative father from
seeking to establish the putative father's paternity. Accordingly, the Court directed all
counsel to submit legal memoranda regarding the applicability of equitable estoppel to
the instant paternity proceedings. Dates for the submissions and further appearances were
fixed; appearance dates were adjourned for a variety of reasons, ultimately because
counsel's submissions were sub judice.
The Court has now received Memoranda of Law on behalf of all parties,
including the child. In addition, the presumptive father has moved for the dismissal of
both paternity petitions on the ground of equitable estoppel.
It is undisputed that, at the time of the child's conception and subsequent
birth, the mother and the presumptive father were married. The record reflects that,
although the parties are still legally married, they have been physically separated from
one another for a prolonged period of time. According to the mother's petition, during a
period of time beginning in approximately January of 2009 until the present, the mother
engaged in sexual intercourse with the putative father, allegedly resulting in the mother
becoming pregnant with the subject child. Although his petition provides a different
time-frame in which their relationship initially commenced, the putative father also avers
that he had sexual intercourse with the mother during the critical period of conception.
Moreover, in further support of her petition, the mother has also affixed the results of a
genetic marker test which indicates a 99.99999 [*3]percentage probability that the putative father is the
biological father of the subject child.
It is asserted in the presumptive father's affidavit in support of dismissal that
the parties have come to an informal agreement whereby they currently share placement
of the subject child. Nonetheless, the Court is constrained to take judicial notice of the
fact that the mother and presumptive father are parties to a pending Family Court Act
article 6 custody proceeding in which they have both petitioned for custody of the subject
child. The Court shall also take judicial notice of the Temporary Order (Silver, J.H.O.),
entered February 3, 2014, pursuant to which the mother and the presumptive father share
joint legal custody of the child with physical placement alternating between them.
In support of his motion to dismiss, the presumptive father asserts that he is
identified as the child's father on her birth certificate as well as on the Certified
Transcript of Birth which is maintained by the New York State Department of Health. He
further claims that, until October of 2013, the mother held the child out as his daughter in
public and amongst friends and family. The presumptive father also asserts that he has
provided the mother with financial support in raising the subject child. Likewise, he
claims to have a very close relationship with the subject child and that he helped the child
to "learn to walk, to talk and to play". The presumptive father also attests that he has
cared for the child by feeding her, by changing her diapers, and by potty training
her.
Ultimately, the presumptive father purports to have "been there for every
important stage of [the child's] life". As such, he argues that both other parties should be
estopped from establishing the putative father as the child's father because they have both
acquiesced in asserting his paternity for a period of approximately three (3) years, thereby
allowing the presumptive father to create a strong parental bond with the subject child. In
support of this proposition, the presumptive father refers to the mother's statement, made
in the related Family Court Act article 6 custody proceeding, whereby she acknowledges
that he had spent 103 days with the child in 2013.
Additionally, the presumptive father's counsel has proffered the affidavits of
the mother's parents. In each affidavit, the maternal grandfather and maternal
grandmother succinctly attest that, up until October of 2013, their daughter, the child's
mother, had always represented that their son-in-law was the child's biological father and
that they had no idea that [*4]anyone other than their
son-in-law could potentially be the little girl's father.
In support of the relief requested in his petition, the putative father has
submitted an affidavit in which he attests that the subject child has known him from
infancy and that they have developed a strong bond to one another. He asserts that he has
shared in the child's care with the mother and that, since birth, he has spent most nights at
the mother's residence. The putative father further attests that he has occasionally
provided child care for the child while the mother was at work. He also indicates that he
has personally taken the child to, as well as accompanied the mother to, the child's
doctor's appointments.
The putative father contends that, as a result of spending so much time at the
mother's residence, he is "certain" that the presumptive father was not present in the
child's life for most of 2012 and the first half of 2013. He also alleges that he has never
seen any indication of the presumptive father providing support for the child and that the
presumptive father's purported failure to provide financial support caused the marital
residence to go into foreclosure.
In his memorandum of law, counsel for the putative father argues that,
during the child's first year and a half of life, the presumptive father largely avoided
parental responsibility and that many of those responsibilities were assumed by the
putative father. Counsel further asserts that, based upon his client's purported assumption
of parental responsibility, along with the presumptive father's alleged failure to provide
the mother with financial support in raising the child, the presumptive father should not
be permitted to raise the defense of equitable estoppel. Ultimately, counsel for the
putative father argues that the presumptive father's minimal acceptance of his parental
duties militates against the imposition of estoppel in favor of a paternity determination
based solely upon the child's best interests.
In addition, the mother and her counsel have submitted sworn statements in
opposition to the relief requested in the presumptive father's motion to dismiss. In his
Reply Affirmation, counsel asserts that the presumptive father's motion to dismiss is
improper and should be denied as there are significant facts in dispute as to the nature
and extent of the relationships established between and among the adult parties and the
infant child such that accelerated judgment is not warranted. As such, the mother's
counsel takes the position that dismissal of the paternity petitions, without conducting a
hearing on the [*5]issue of estoppel, would be an
injustice.
The mother further refutes her husband's motion to dismiss based upon the
allegations contained in her sworn affidavit. Initially, the mother outright attests that the
putative father is the child's biological father and that her husband is not. She further
avers that her husband has been "absent from [their] marriage since November of 2006".
Since that time, the mother asserts that she has lived in Ogdensburg, New York, and that
the Respondent has spent minimal time at her Ogdensburg residence. Moreover, she
emphatically attests that "at the relevant period of time at Lauren's conception [the
mother] had no sexual relations with K.L.".
According to the mother's Affidavit, her husband "grossly overstates his
visitation time with Lauren" and has had minimal involvement in the child's care and
upbringing, especially during the child's first two (2) years of life. On the other hand, the
mother goes to great lengths to attest to the nature and extent of the relationship that the
putative father enjoys with the child. The mother asserts that the putative father has
carried out the traditional responsibilities of a father within their relationship and that he
has taken an active role in Lauren's life.
Finally, the mother asserts that it is "inconceivable" that her husband was
unaware of her relationship with the putative father, as she purports that it has been
"clear, open and obvious to everyone in the community that [the putative father] and [the
mother] had been together since well before the child's birth and living together at [her]
house". In support of this assertion, the mother describes an incident which occurred
prior to the child's birth in which she introduced the putative father to the presumptive
father.
As previously noted by the Appellate Division, Third Department,
"[c]ourts have long recognized the availability of the doctrine of equitable
estoppel as a defense in a paternity proceeding. Further, because a child's best interest is
of paramount concern in proceedings to establish paternity and recognizing that the
inevitable effect of destroying the child's image of her family would be catastrophic and
[fraught] with lasting trauma, the courts are more inclined to impose equitable estoppel
to protect the status of a child in an already recognized and operative parent-child
relationship" (Kristen D. v Stephen D., 280 AD2d 717, 719 [3d Dept 2001]
[internal quotation marks and citations [*6]omitted]).
Moreover,
"[t]he doctrine of equitable estoppel does not involve the equities between
the two adults; the case turns exclusively on the best interests of the child, because the
child is entirely innocent and by statute the party whose interests are paramount. Put
differently, it is the child's reliance upon a representation of paternity that is to be
considered" (Dustin G. v.
Melissa I., 69 AD3d 1019, 1020 [3d Dept 2010] [internal quotation marks and
citations omitted]).
In these proceedings, it is alleged, that, from the child's birth in November of
2010 until October of 2013, the mother consistently held her husband out as the child's
father to friends and family, including the child's maternal grandparents. More
importantly, the mother purportedly allowed the subject child to develop a close
parent-child relationship with the man whom the law presumes to be the child's
father.
As for the putative father's petition, it is well established that the doctrine of
equitable estoppel may be used to "preclude a man who claims to be a child's biological
father from asserting his paternity when he acquiesced in the establishment of a strong
parent-child bond between the child and another man" (Mark T. v Joyanna U., 70
AD3d 1068, 1069 [3d Dept 2010], lv denied, 15 NY3d 715, quoting Matter of Shondel J. v Mark
D., 7 NY3d 320, 327 [2006]).
The putative father's delay in seeking to assert paternity is readily apparent.
In his petition, the putative father acknowledges that he had sexual intercourse with the
mother during the critical period of conception. Nevertheless, the putative father
acquiesced in asserting his paternity until shortly after the child's third birthday. In doing
so, he tacitly allowed the child to develop a parent-child relationship with the
presumptive father knowing full well that he was potentially the father of the child.
The Court is not persuaded to rule in favor of the petitioners based solely
upon the results of the independent genetic marker testing. Although it is certainly a
factor to take into consideration, "the desirability of knowing one's true father alone is
not sufficient to tip the scales in favor of [the [*7]putative
father]" (John Robert P. v Vito
C., 23 AD3d 659, 662 [2d Dept 2005]).Accordingly, given the conflicting
allegations in the parties' various pleadings, affidavits, and memoranda as to the nature
and extent of father-daughter relationship shared between the presumptive father and the
child, it is clear that a hearing is warranted to determine whether the mother and putative
father should be estopped from asserting the putative father's paternity or, in the
alternative, whether it is in the child's best interests to establish the putative father as her
legally recognized father.
As suggested in this decision and order, the allegations and claims of the
three adult parties are dramatically divergent. It would seem, under those circumstances,
that it would be prudent, before any fact finding hearing, for the parties to engage in the
most robust discovery proceedings including bills of particulars and examinations before
trial. It is suggested that the latter include the deposition of any non-party affiants whom
any party might contemplate calling to testify. The schedule established in the following
decretal paragraph provides adequate time for such an opportunity. The Court also notes
that a conference with the Court, at an early opportunity, may be salutary.
Under these unusual circumstances, it is prudent for the Court to reserve
decision upon any motion to dismiss the pending paternity petitions. Likewise, it would
also seem that any resolution of the companion Family Court Act article 6 custody
proceedings is dependent upon the outcome of these paternity petitions. Accordingly, and
upon the Court's own motion, the custody proceedings will be stayed but conferenced
with the Court on the conference date established in the following decretal
paragraphs.
NOW, upon due consideration, it is hereby
ORDERED that these proceedings, and the companion Family
Court Act article 6 custody proceedings, be, and the same hereby are, adjourned to the
calendar of this Court on the 13th day of June, 2014, at 1:00 p.m., for a conference with
all parties, except the child, and all counsel to be present; and it is further
ORDERED that these paternity proceedings be, and the same
hereby are, further adjourned to the calendar of this Court on the 16th day of July, 2014,
at 8:15 a.m., for a pre-trial [*8]settlement conference, if
necessary; and it is further
ORDERED that these paternity proceedings be, and the same
hereby are, further adjourned to the calendar of this Court on the 18th day of July, 2014,
at 8:15 a.m., for an evidentiary hearing, if necessary, to determine whether the petitioners
should be estopped from asserting the putative father's paternity of the subject child; and
it is further
ORDERED that discovery relative to these paternity proceedings be
completed by not less than two weeks prior to the pre-trial settlement conference and the
evidentiary hearing ordered herein; and it is further
ORDERED, upon the Court's own motion, that the Chief Clerk of
this Court enter an order staying the companion Family Court Act article 6 custody
proceedings except as set forth herein.
ENTER____________________________
Family Court Judge
Dated at Malone, New York, this 15th day of May, 2014.
Footnotes
Footnote 1:It should be noted that
the putative father's petition was not addressed at the initial appearance before the
Support Magistrate on February 10, 2014, as the order transferring the matter to this
Court was not received until the day of the appearance on the mother's petition.
Nonetheless, all of the appropriate parties to both petitions were before the Court.