The attorney for the child, 6-year old "Agnes" (the name is fictitious), moves to dismiss the petition herein. The petitioner, an incarcerated felon, claims to be the father of the child who he alleges was born out of wedlock and further claims that the respondent-mother has acknowledged his paternity of the child. He seeks an order pursuant to Family Court Act § 532 [*2]for DNA testing and, ultimately, a judgment determining him to be the child's father.^[FN1]

In support of her motion, the child's attorney provides a copy of the child's birth certificate and the affidavit of the respondent, the child's mother. The mother's marriage certificate shows that she was married to her husband on August 9, 2006, some nineteen months prior to Agnes' birth. Agnes' birth certificate recites that the mother's husband is her father. The mother further avers that the child carries her husband's surname, has throughout her lifetime called him "Daddy", and that the child has a strong and loving relationship with the respondent's husband who has parented the child and consistently supported her both financially and emotionally. The respondent's husband submits his affidavit fully supporting the motion to dismiss, alleging that he has " ... always supported (Agnes) emotionally and financially from the day she was born."

The petitioner's opposition to the motion takes the form of an affirmation from his attorney based on information and belief. The petitioner has been incarcerated since 2009 and will not be eligible for parole until early in 2019. His attorney states that his information comes from conversations with the petitioner and documentation provided by him.

Contrary to the sworn allegation in his petition, the petitioner now concedes that the respondent and her husband have been legally married since 2006 but claims that "this has never been an actual marriage" and that Agnes was conceived as a result of his sexual relations with the respondent. The petitioner does not state when the sexual relations occurred, only that the mother was using her maiden name at the time, thus suggesting that it was prior to her marriage (and, thus, more than nineteen months before Agnes was born). He attaches the affidavit of his own mother who attests that, to her knowledge, he and the respondent "dated" between late 2007 and "sometime in 2009 when he went to State Prison." Further, she states that the petitioner and the respondent spent the night together at various locations on various unspecified occasions. Based on Agnes' date of birth, conception would have taken place approximately nine months earlier, in June, 2007, not "late 2007" when he allegedly began "dating" the respondent. Nonetheless, petitioner's mother claims that the respondent admitted to her "many times" during her pregnancy that the petitioner was the child's father.

In further support of his position, the petitioner provides the last page of a letter that he claims was sent to him in prison by the respondent in 2010. In it, and immediately after telling him that she loves him and wishes the best for him, she complains that she alone has raised Agnes without any contribution or other help from him. Petitioner further provides a "log" prepared by him and purporting to show letters, cards and telephone calls from him to the respondent between July, 2012 and April, 2014 as well as documentation maintained by the Department of Corrections and Community Supervision (DOCCS) showing that he was visited by the respondent on October 29, 2013, thus casting some doubt on the respondent's allegation in [*3]her affidavit that she has not seen the petitioner since 2009. The petitioner provides four photographs, two of him and Agnes (both prior to his incarceration) and two of Agnes with his mother (one in 2010 and the other at Halloween 2011), submitted presumably to demonstrate that he and his mother have had some relationship with the child. Finally, the petitioner alleges that the respondent has accepted collect telephone calls from him and allowed him to speak to Agnes and he provides the court with several pages of printed text messages between his mother and the respondent in which it appears that his mother is attempting to maintain contact and a relationship with Agnes and the respondent does not appear to oppose that. All of this, even if true, is unavailing.

In response to the petitioner's submissions, the respondent admits seeing the petitioner in prison in 2013 but claims that her purpose in doing so was to confront the petitioner and tell him to leave her, Agnes and her husband alone. She admits that her family and the petitioner's family have always been "friendly" and that she and her husband have had occasional financial struggles as a result of which she claims that the petitioner had offered to try to help her.

A child born to a married woman is presumed to be her husband's. While not irrebutable, the presumption was described more than eighty years ago by Chief Judge Cardozo as "(p)otent indeed" and "one of the strongest and most persuasive known to the law ... ." Matter of Findlay, 253 NY 1, 7 (1930). The passage of time and changing mores have done nothing to erode the presumption's vitality. Matter of Felix O. v. Janette M., 89 AD3d 1089 (2d Dept 2011). As a result, the issue concerning rebutting the presumption of legitimacy turns solely on the best interests of the child. Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1 (2010).

Family Court Act § 532 (a) provides that when paternity is in issue, the court "shall" order a genetic marker test or DNA test, but further directs that "(n)o such test shall be ordered ... 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 ... ."

"Paternity by estoppel" is the means by which equity seeks to protect the child's interests. It may be invoked either offensively to enforce rights or defensively to prevent rights from being enforced (Matter of Juanita A. v. Kenneth Mark N., supra), and it is fully applicable where, as here, a male claiming to be the mother's former lover seeks to assert a claim of paternity that is in opposition to the presumptive paternity of the mother's husband. See, for example, Matter of Ettore I. v. Angela D., 127 AD2d 6 (2d Dept 1987). The relative equities between the adults are of little consequence. Matter of Starla D. v. Jeremy E., 95 AD3d 1605 (3d Dept 2012), lv dismissed 19 NY3d 1015 (2012). It is the child's best interests that are paramount. Matter of Dustin G. v. Melissa I., 69 AD3d 1019 (3d Dept 2010), lv denied 14 NY3d 708 (2010).

The party asserting equitable estoppel (here, the child herself, through her attorney) bears the initial burden of showing that the non-moving party (here, the petitioner) has acquiesced in the formation of a father-child bond between the other man and the child. Once a sufficient prima facie showing has been made, the burden then shifts to the non-moving party to [*4]demonstrate that the child's best interest requires that a genetic marker test be ordered. The claim of equitable estoppel may be determined on the papers and without a hearing if the court possesses sufficient information to make a determination consistent with the child's best interest. Matter of Edward WW. v. Diana XX., 79 AD3d 1181 (3d Dept 2010).

Documentation submitted by the child's attorney establishes beyond question that the petitioner's sworn allegation that Agnes was born out of wedlock is patently false. The petitioner seeks to repair this by his novel assertion that the mother and her husband were not "actually" married, a concept that finds no basis in the law. Affidavits provided by both the mother and her husband and accompanying documentation are sufficient to meet the child's prima facie burden.

The affirmation of petitioner's attorney, being made by one with no first-hand information and relying solely on the information provided by the petitioner himself, carries no probative value. While the petitioner is incarcerated more than 150 miles from his attorney's office ^[FN2] , his petition signed while he was so incarcerated at the same facility was duly verified and there appears to be no reason why his own affidavit could not be submitted now in support of his claim. Even if his opposition had come in proper form, it is still insufficient as a matter of law. As mentioned, he fails to allege that he and the mother engaged in sexual relations during the time when the child was conceived and he fails to challenge the allegation regarding Agnes' lifelong relationship with her "Daddy". Not only does the petitioner utterly fail to show that Agnes' best interests require a genetic marker test, it appears from the submissions that Agnes' best interests demand the dismissal of his petition. Nothing in the record demonstrates that any fact-finding hearing would be warranted.

NOW, THEREFORE, on motion of the child's attorney, it is

ORDERED, that the petition herein be, and the same hereby is, dismissed on the merits.

ENTER:

Judge of the Family Court

Respondent

Gerald D. Raymond, Esq., for the Petitioner;

Heather A. Prado, Esq., for the Respondent;

Gemma Rossi Corbin, Esq., for the Child.