On August 5, 2013, the petitioner-mother filed a verified petition seeking to vacate the Acknowledgment of Paternity dated December 13, 2010 in which B. H. acknowledged that he is the father of B. H. S., date of birth December 11, 2010. The petitioner alleged that at the time of the birth she believed that B. H. was the birth father. In the petitioner's Supplemental Affidavit, she alleged that N. H. is the biological father and that a DNA test confirmed this allegation.

The matter proceeded to a hearing with A. S. appearing with her attorney Heather Vincent, Esq.; B. H. appearing with his attorney Rory Gilhooley, Esq; N. H. appearing with his attorney Diane Darwish Plumley, Esq; and the Attorney for the Child John Voninski, Esq. also appearing. Testimony was taken on February 27, 2014; March 4, 2014; and April 22, 2014.

Section 516-a of the Family Court Act states that after 60 days of signing an Acknowledgment of Paternity, a challenge may be mounted by alleging and proving fraud, duress, or material mistake of fact. A hearing is necessary to determine whether or not there is such proof and the petitioner has the burden of proof. (FCA §516-a(b); NG v. Calderon, 6 AD3d 255, 1st Dept. 2004.)

If the petitioner successfully meets the initial burden of proving fraud, duress, or material mistake of fact, then the court determines whether a DNA test is in the child's best interests or whether the petitioner should be estopped from DNA testing. (Cleophous v. Latrice M.R., 299 AD2d 936, 4th Dept. 2002.)

The doctrine of equitable estoppel in a paternity action is codified in Section 532 (a) of the Family Court Act, which states that no DNA test shall be ordered upon a written finding by the court that it is not in the best interests of the child based on equitable estoppel. The use of equitable estoppel in a paternity action has been further defined by well-established case law.

The Court of Appeals has ruled that the court should determine whether estoppel applies prior to ordering a DNA test. (Shondel J. v. Mark D., 7 NY3d 320, 2006.) The Court of Appeals has also held that it is the child in whose favor estoppel is applied, and the analysis rests exclusively on the best interests of the child rather than on the equities between the two adult parties. (Id., at 331.)

The following factors must be considered by the court in its best interests analysis: the nature and extent of the existing parent-child relationship; the child's interest in knowing the biological [*2]identity of the father with certainty; the traumatic effect that DNA testing may have on the child; the impact that uncertainty might have on the father-child relationship; and if paternity is being denied, whether the identity of others who may be proven to be the father is known or likely to be determined. (Hammack v. Hammack, 291 AD2d 718, 3rd Dept. 2002; Gutierrez v. Gutierrez-Delgado, 33 AD3d 1133, 3rd Dept. 2006.)

B. H. testified that he met Ms. S. in the summer of 2009; that they dated; and moved in together. He testified that they had sexual intercourse at the time of B's conception on or about March 6, 2010.

B. H. testified that he was present in the delivery room when B. was born. He stated that he has acted as the child's father for three and one-half years and that he has bonded with B. in a father/son relationship. He stated that for the first year of B's life, he was involved in feeding, bathing, dressing, diapering, and playing with the child. He stated that they have shared birthdays, holidays, as well as trips to the Zoo and the MOST Center. He stated that in B's second year he continued this role until he and Ms. S. separated on December 11, 2012. He stated that after that time he would see the child only occasionally.

B. H. testified that the first time that Ms. S. told him that he was not B's father was during an argument on April 23, 2013. He stated that he was upset but that he believes that he is B's only father. He stated that after the April 23rd argument, Ms. S. applied for and received a "stay away" order of protection issued by the Town of Salina Court and that he then filed a petition for visitation in Family Court on May 31, 2013.

B. H. testified that he started seeing B. again after a temporary order for visitation was issued on the consent of the parties on August 2, 2013, granting him parenting time every Sunday from 9:00 AM until 7:00 PM at the home of Mr. H's mother. He also stated that B. has a bedroom at his home. He also stated that there is no child support order but that he supplied the child with clothes, diapers, and food.

B. H. testified that B. has been diagnosed with a speech delay but that B. says "dada." He also stated that B. uses hand movements to communicate and has a happy and excited demeanor when he is with him on SundaysThe Court received into evidence Exhibits A through U, which consist of photos of B., usually with B. H., from 2011 through 2013 in a variety of places.

B. H. testified that there is no other adult male in B's life except for Ms. S's father and brother. He stated that he never saw N. H. with B. prior to September, 2013. He stated that in October, 2013 he and N.H. went to the Blarney Stone bar to discuss B. and that he told N.H. that he wishes to be B's father as he is the only father B. has ever known.

On cross-examination by the attorney for A. S., B. H. admitted that he and Ms. S. had a few "breakups" during their relationship, including in March, 2010 and on April 23, 2013. He also admitted that he was charged with Harassment in April, 2011 and that an order of protection was issued in favor of Ms. S. The witness testified that on April 23, 2013, he "pushed by" Ms. S. to get away from her but that the charge was dropped after he completed a 28-week Vera House domestic violence prevention course. He also testified that he received an order of protection in his favor against Ms. S. in 2013.

B. H. testified that he paid for food when he and Ms. S. lived together but that she never asked him for money. He testified that B. was on Medicaid when they lived together but that the [*3]case was closed when Ms. S. and the child moved out in April, 2013. He stated that he still resides in the apartment on T. Street.

B. H. testified that he last took B. to a doctor when he and Ms. S. lived together and that he is not sure about the child's diagnosis. He acknowledged that B. has speech delays and that he points to an object, such as milk, when he wants it. He stated that B. says "dada" and babbles words and sounds. B. H. admitted that he is not involved with the child's school due to the order of protection.

B. H. testified that he is friendly with N.H. and that he sees him once or twice per month on a weekend. He stated that N. H. would tell him if he saw B.

On cross-examination by the attorney for N. H., B. H. admitted that in April, 2011 Ms. S. told him that he was not B's father on the phone. He stated that at that time he and Ms. S. were not residing together. He stated that in 2013 Ms. S. told him that if he pursued visitation, he might find out something he does not want to know, that he is not the father. He stated that he thought Ms. S. was saying it out of spite. He also testified that he and Ms. S. split up three times since B's birth and thereafter he could not see the child. He admitted that he did not seek DNA testing. He stated since August 12, 2013 that he has had a temporary order granting him visitation under the pending custody proceeding. The Court received Respondent's Exhibit 2A into evidence which is a copy of the Temporary Order. B. H. testified that he has only missed one or two visits since the order was issued due to B. being sick.

B. H. testified that he communicates with B. via hand signals and that difficulties arise only when B. is tired.

On cross-examination by the Attorney for the Child, B. H. admitted that he does not pay child support but stated that he would be willing to support the child. He stated that he has an Associate Degree in Business and that he is employed at Tru Green and is in training.

On re-direct examination, B. H. stated that he considers himself to be B's father. He stated that he learned how to control his temper during his domestic violence course. He also stated that he has never been asked to attend B's school or medical appointments.

On re-cross-examination by the attorney for Ms. S., B. H. testified that he took B. to the doctor's office fifteen times during the period of time when he lived with the mother.

The Court finds B. H. to be a very credible and reliable witness.

Karen Weaver was called as a witness by the attorney for Ms. S. and the Court took her testimony out of order. Ms. Weaver testified that she is a special education teacher at Little Luke's and has been B's teacher since October, 2013. She works with B. five days each week for about 1.5 hours each day. She stated that B. has an Individualized Education Plan (IEP) with goals to improve speech, language, and socialization.

Ms. Weaver testified that B. does not speak but he does understand what words represent and can verbalize sounds. She stated that B's IEP states that he is a preschooler with a disability that is not identified. She testified that B. is a shy child and quiet with strangers. She also stated that she has never had any contact with B. H.

On cross-examination by the Attorney for the Child, Ms. Weaver testified that B's cognitive and speech are severely delayed for a three-year-old child. She stated that she has never heard B. say a word; rather, that he makes grunts and groans. She stated that the word "dada" would not mean anything to B.

The Court finds Karen Weaver to be a very credible and reliable witness.

Megan Kellogg was called as a witness by the attorney for Ms. S. and the Court took her testimony out of order. Ms. Kellogg testified that she is the Program Director at Little Luke's. She testified that many of the children in the program have IEP's but that she is not familiar with B's IEP.

The Court found Megan Kellogg to be a very credible and reliable witness but of limited evidentiary value due to her unfamiliarity with B.

N. H. was called as a witness by the attorney for B. H. He testified that he has known Ms. S. for five years. He stated that he does not know B's date of birth or his middle name. He stated that in 2011 Ms. S. informed him that he might be B's father but he did not file a paternity petition. He stated that he did participate in a DNA test and Ms. S. told him of the results.

N.H. testified that he has never taken B. anywhere or observed birthdays or holidays with the child. He stated that he has two children and that his child J. met B. once. He stated that Ms. S. brought B. to his home two or three times. He stated that he does not know where Ms. S. lives and has never provided her with any financial support.

N.H. testified that although he knew that Ms. S. was pregnant, he had no idea that he might be the father. He stated that he did not step forward because Ms. S. was in a relationship with B. H. but that he would be willing to step forward to parent B. if he is determined to be the biological father.

On examination by his attorney, N.H. testified that he did not apply for parental rights in Family Court because Ms. S. approached him only when she was "broken up" with B. H. and he assumed they would get back together. He stated that he did not want to break up a relationship or break a child's heart as B. H. loves B. He stated that Ms. S. told him that she now believes that B. would be better off with him as the father.

N.H. testified that he was a member of the military and deployed to Fort Drum in Watertown from 2010 to 2012.

N.H. testified that he discussed B's situation with B. H. in a conversation they had at the Blarney Stone. He stated that he does not recall all of the conversation but he thinks that B. H. said that N.H. could walk away and B. H. would step in and love the child. He also stated that B. H. has initiated phone calls and texts to him since their meeting but that there has not been much said about the situation concerning B.

On cross-examination by the Attorney for the Child, N.H. testified that he served in the military from April, 2003 through April, 2012 and that he was deployed to Iraq twice for a period of 12 to 15 months. He stated that he received an honorable discharge and has commendations. He said that he sustained back and brain injuries after an explosion during the "Surge" in Iraq for which he received the Purple Heart. He stated that he suffers from post-traumatic stress disorder (PTSD).

The Court finds N. H. to be a credible witness.

A. S. testified that she is B's mother and that she and B. H. began dating on September 9, 2008 and moved in together shortly thereafter. She stated that they broke up in February, 2010 and got back together in April, 2010. She testified that she was intimate with N.H. during the time of the break up and until around March 28, 2010. She stated that she became pregnant with B. in May, 2010 and the child was born on December 11, 2010.

Ms. S. testified that when she was discharged from the hospital her brother transported the child and her to her parents' home on Old Liverpool Road where she, B. H., and B. lived for a few months. She stated that he moved out on March 23, 2011 after they argued over watching the child [*4]and had a shoving match. She stated the police were called and that B. H. was arrested and charged with Assault, Endangering the Welfare of a Child, and Unauthorized Use of a Motor Vehicle. She also stated that a stay-away order of protection was issued on behalf of B. and herself and that the order was later reduced to a "B" order.

Ms. S. testified that B. H. did not see B. until they got back together in April, 2011. She stated that they broke up again after a few months and then she and B. moved back into her parents' residence. She testified that she and B. H. have broken up ten times over the years and their final break up was on April 27, 2013. She stated that B. H. only saw B. once after their separation until his contact resumed after a court order in August, 2013.

Ms. S. testified that B. H. did not provide money, food, shelter, or clothing for B.

Ms. S. testified that B. makes sounds but that he does not communicate with her and does not make hand signals or call her "mama.". She stated that B. goes to special education class for speech therapy at Little Luke's in Radisson. She stated that B. H. has never been involved in school and never took B. to a doctor's appointment unless she was there.

Ms. S. testified that she was the primary parent and that B. H. rarely watched B. when she was at work. She stated that she would drop off the child at her mother's home when she worked. She also stated that B. was rarely around B. H's family.

Ms. S. testified that in May or June of 2011 she performed a "home" DNA test because she believed that N. H. was the biological father. She stated that the DNA test revealed that N. H. is B's father.

Ms. S. stated that she was not intimate with B. H. from January, 2010 through April, 2010. She stated that B. H. told other people that he is not B's father and that he has never offered any child support. She stated that B. H. sold the baby's items, such as a high chair, crib, and changing table, on the online site Craigslist and kept the money for his own use.

Ms. S. stated that she did not deny visitation to B. H. when he requested it. She also stated that the current visitation order directed that her mother supervise the first visit as B. was not acquainted with B. H.

On cross-examination by the attorney for B. H., Ms. S. testified that she has seen the photos which were received into evidence and admitted that N.H. is not in the photographs. She stated that B. H. was in the child's life as long as they were together. She stated that B. H. filed for visitation on May 31, 2013. She also admitted that she was arrested in April, 2013 and charged with two offenses after the incident with B. H.

On cross-examination by the attorney for N.H., Ms. S. testified that she asked B. H. for support money but he did not comply; she never asked N.H. for any money.

Ms. S. testified that the order of protection was issued to protect B. and herself and that it expired in March, 2014. She stated that the order is being reviewed by the District Attorney.

Ms. S. testified that she has worked part time since B's birth and that her mother watches the child. She stated that she asked B. H. to babysit but he would not watch B. on weekends. She admitted that during the time from B's birth until their final break up in April, 2013, B. H. watched B., sometimes for five hours at a time.

Ms. S. testified that she went to N.H's home in June, 2011 to inform him of the DNA test results. She stated that from June, 2011 through May 31, 2013, N.H. and his family saw B. about 7 times. She stated that she told B. that N.H. is his father but that B. does not understand the [*5]relationship.

Ms. S. testified that from May, 2013 through April 22, 2014, N.H. has seen B. once or twice and always in her presence, usually for a half-hour at a time. She stated that N.H. texted her to see how B. was and to initiate the visit. She stated that N.H. last saw B. in 2013, around the time of Halloween.

Ms. S. admitted that B. H. gave B. a few baths and fed him, but that he never prepared a meal for the child. She stated that B. H. accompanied B. and her to the zoo and to the Sea Breeze amusement park on one occasion.

Ms. S. testified that she did not file a custody petition or a child support petition because she was occupied with other things and did not understand the legal issues until she consulted with an attorney. She stated that she has no plans for N.H. to visit B.

On cross-examination by the Attorney for the Child, Ms. S. described B. as disabled with a lack of motor and communication skills. She stated that he does not bond with people and that he cannot speak.

On re-direct examination. Ms. S. testified that she and B. have spent all of the holidays with her family except for one occasion which was spent with B. H's family. She stated that B. visited B. H's family 5 or 6 times after B. H's mother asked to see the child. She also testified that she is the sole financial support for B.

The Court finds A. S. to be a credible, very self-assured and confident witness. However, she was somewhat nervous, inconsistent, and smug when testifying about the photos which were received into evidence.

R. S. testified that he is A. S's brother and is familiar with the relationship between B. H. and his sister. He stated that he helped his sister move 8 to 10 times over the past few years. He also stated that he brought the mother and child home from the hospital after B's birth. He stated that he sees B. 3 or 4 times per week. He stated that B. has trouble speaking and bonds faster with "girls" than "guys."

On cross-examination by the attorney for B. H., Mr. S. admitted that B. H. was at the hospital for the birth.

On cross-examination by the attorney for N.H., Mr. S. stated that he saw B. H. and B. together from 50 to 100 times. He stated that he never saw N. H. with B.

The Court finds R. S. to be a very credible witness.

Y. S. testified that she is A. S's mother and B's grandmother. She stated that she was present at B's birth and that A. S., B., and B. H. lived with her "off and on" for months at a time. She stated that they moved out of her home due to a mold issue but that A. S. and B. moved back in with her after the break up with B. H. She stated that at one time she watched B. 4 nights per week, but recently she watches him one or two nights per week.

Y. S. testified that B. H. did not provide any financial support for B. and that he has not participated in school events. She stated that B. does not talk but that he does point to objects, such as the refrigerator.

The Court finds Y. S. to be a straightforward, credible witness.

In his closing statement, the attorney for B. H. stated that his client has been highly involved in B's life since his birth, as evidenced by the many photos and B. H's testimony. He stated R. S's testimony confirmed that B. H. has been present throughout B's life. He stated that B. H. is the only [*6]father figure that B. has ever known, pointing out that N.H. has played a very limited role in the child's life. He noted that N.H. has not applied to the Court for any parental access and that he has not even appeared at all of the Court appearances in the current proceedings. He urged the Court to find that Ms. S. should be estopped from excluding B. H. from B's life.

In her closing statement, the attorney for Ms. S. stated that there is no parent/child bond between B. and B. H. and noted that he has never provided financial support for the child. She argued that B.H's interactions with B. were due to his relationship with the mother and not evidence of parenting the child. She stated that it would be in the best interests of B. to have DNA testing to confirm that B. H. is not his biological father.

In her closing statement on behalf of N.H., his attorney stated that N.H. will accept whatever decision is made by the Court. She also stated that her client believes that if the Court finds there is an existing relationship between B. and B. H., then it should not be interrupted. However, if the Court does not find such a relationship exists, then N.H. will "step up" to be the father if a DNA test confirms that he is the biological father.The Attorney for the Child stated that mere contact with B. is not enough to show a parental bond. He urged the Court to grant DNA testing.

When a petition seeks to vacate an acknowledgment of paternity more than 60 days after it is signed, the petitioner must present a prima facie case alleging that there was fraud, duress, or material mistake of fact. Surprisingly, Ms. S. presented no testimony with any direct bearing on any of these issues. There was no allegation that she executed the Acknowledgment of Paternity under duress or fraud. With respect to the issue of mistake of fact, Ms. S. testified at trial that she did not have sexual relations with B. H. during the time of conception, as the couple were separated. It is inconsistent for Ms. S. to claim that she made a mistake at the time that she executed the Acknowledgment of Paternity if she knew all along that he could not be the father. Therefore, her petition is dismissed for legal insufficiency.

However, even if the Court were to make a finding that there was a material mistake of fact, Ms. S. would still have the burden of showing why she should not be equitably estopped from vacating the Acknowledgment of Paternity.

Based upon Ms. S's own testimony, she permitted B. H. to have unfettered access to B. for the first three years of the child's life except during periods when the couple were separated. While there is no evidence that B. H. provided any financial support for the child; there is competent evidence that he played a substantial care-giving role in B's life when he and the mother resided together. B. H. also filed an application in Court for parental access almost immediately after the break in his relationship with the mother in 2013. There is competent evidence that he has consistently availed himself of the weekly parenting time with B. granted by the temporary order of visitation in the pending custody proceeding.

Ms. S. testified that as early as June or July of 2011, she became aware that B. H. was not B's biological father. Ms. S. could have filed a petition in 2011 to vacate the acknowledgment of paternity, but she did not. Ms. S. also could have sought to develop a parental relationship between B. and N. H., but she did not. Instead, she acquiesced in the formation of a parental bond between B. and B. H. until such time as the relationship between B. H. and herself soured. Indeed, there is little doubt that she filed this petition only after B. H. sought parental access with B.

Ms. S's attempts to portray her son as incapable of bonding with another person appear to this [*7]Court to be exaggerated and self-serving. There was no expert testimony offered at trial to support such an allegation. The testimony and proofs leave little doubt that B. is a special needs child; but there is no requirement under law that a child must be capable of overtly returning parental affection for such a bond to exist. Under Ms. S's line of reasoning, a special needs child such as B. would be denied a father if the mother did not lend her approval to the relationship. In cases involving the best interests of a child, the Court looks beyond any limitations of the child to determine whether a parent-child relationship exists. (Linzi W., v. John R., 26 Misc 2d (Monroe County Fam. Ct., 2009.)Based on the foregoing analysis, the Court also finds that the child's interest in knowing with certainty the identity of his biological father is outweighed by the benefit of preserving the existing relationship with B. H.

The Court notes that the doctrine of equitable estoppel can be overcome if it is in the best interests of a child in a disputed paternity action. (Cleophous P., Jr. v. Latrice M.R., 299 AD2d 936, 4th Dept. 2002.) However, the Court finds that it is not in the best interests of B. to vacate the Acknowledgment of Paternity or to go forward with DNA testing.

Accordingly, this Court finds that Ms. S. did not meet her burden of showing why she should not be estopped from vacating the Acknowledgment of Paternity and denies her petition. (James BB. v. Deborah AA., 202 AD2d 852, 3rd Dept. 1994.)

Therefore, it is hereby

ORDERED, that the paternity petition is dismissed with prejudice; and it is further

ORDERED, that service of this Order upon the attorneys for the parties and the Attorney for the Child is deemed sufficient.