Family Court, Erie County, February 19, 2020

Michael F. McPartlan for petitioner.

Cecile D. Dorliae for respondent.

Peter P. Vasilion, Attorney for the Child.

Petitioner, J.F. (petitioner or Mr. F.), filed a paternity petition on March 12, 2019, against respondent, R.P. (respondent or Mr. P.), seeking to establish himself as father to O.P., born December 2016 (O). Respondent moved to dismiss the petition on the basis of equitable estoppel; petitioner opposed. The motion was granted to the extent that a hearing was scheduled. The hearing was held on November 22, 2019. Both parties testified; no other witnesses were called. An in camera Lincoln hearing was held with the child, O on December 6, 2019. All parties were provided an opportunity to submit written summations and memoranda of law.

Now, upon all the pleadings and proceedings held herein and upon the court's unique opportunity to observe and evaluate the demeanor, credibility, temperament and sincerity of each witness, to review the pertinent statutes and case law and apply it to the evidence adduced at the hearing, I render the following findings of fact and conclusions of law, decision and order:

Respondent Mr. P. is the natural birth mother of the subject child, O. Respondent [*2]testified that he recently transitioned to become a male, uses the name "A" (a male first name) and prefers masculine pronouns. In deference to that preference, the court shall use masculine pronouns to refer to respondent.

Respondent Mr. P. has three children, J., age 10; M., age eight; and O, the subject child, age two at the time the petition was filed. Of the three children, only O is biologically related to respondent, the other two were adopted by him. All three children reside with respondent and his fiancée, Ms. K.

Respondent Mr. P. has been in a continuous relationship with Ms. K. throughout all relevant time frames herein including during the period of conception. O has lived his entire life with both of them. Mr. P. and Ms. K. plan to marry August 15, 2020. They are in the process of building a house and are currently renting a home until it is completed.{**68 Misc 3d at 522}

O is a healthy, developmentally appropriate young boy with no special needs.

Petitioner Mr. F. and respondent Mr. P. became acquainted in September 2015 while they were both working security jobs at Mercy Hospital. Petitioner heard respondent talking about wanting to conceive a child and offered to donate his sperm.

There is no dispute that at the time of these discussions, petitioner Mr. F. knew that respondent Mr. P. was a lesbian and was in an established relationship with Ms. K.

There was contradicting testimony about how respondent became pregnant. Respondent Mr. P. testified that he became pregnant with O through artificial insemination and denied ever having sexual intercourse with petitioner. Respondent testified he received sperm donations from two males, petitioner and another, that they did not use an agency, this was a private, at-home insemination with a syringe, and neither sperm donor was present. Respondent admits it is possible that petitioner is the biological father of O.

In direct contradiction to respondent's testimony, petitioner Mr. F. testified that he had sexual intercourse with respondent once a week every week from October 2015 until April 2016 except for a period of one month. This testimony however was not credible, especially given that respondent Mr. P. was a lesbian, Mr. P. was in a committed relationship, Mr. F. admitted knowing this, and Mr. P. credibly testified he always dressed as a man.

The parties disputed whether there was any agreement between them regarding the role Mr. F. would play in the child's life. There is no written agreement. Respondent Mr. P. testified that prior to the birth, it was understood between the parties that petitioner would not have any role in the child's life. When the child was old enough to understand artificial insemination, respondent and Ms. K. would tell the child about the sperm donors and leave it to the child to follow up if s/he was interested in meeting the donor. Mr. P. did not offer any further evidence of this agreement. After O was born, respondent testified, he and Ms. K. typed up a written agreement wherein Mr. F. would waive any rights or obligations to O and asked petitioner to sign it, but petitioner refused. However, petitioner denied ever seeing a written agreement prepared by respondent.

Petitioner Mr. F. admitted that at the time he agreed to donate his sperm he knew that any child resulting from his{**68 Misc 3d at 523} donation would be primarily raised by respondent and Ms. K. However, he testified that it was his understanding that he would also be a part of the child's life. Mr. F. failed to elaborate any further and offered no supportive proof.

Petitioner Mr. F. testified that he stopped seeing or speaking with respondent in spring 2016.

Mr. F. testified he became aware of respondent's pregnancy around October 2016. He [*3]testified that he was told it was not his biological child, but failed to explain the source of that information. Mr. F. made no efforts at that time to ascertain paternity or engage in prenatal care.

O was born December 2016. Petitioner Mr. F. was not present at the birth. Mr. F. testified that he was unaware of O's birth. Mr. F. did not attempt to ascertain the due date or ask to be notified when respondent was in labor.

Following O's birth, petitioner Mr. F. admitted that he initially made no efforts to obtain a genetic marker test or establish paternity because he had lost touch with Mr. P. and did not believe the child was his. In July 2018, when O was approximately 19 months old, petitioner received a text that he thought, at the time, was from respondent, although it turned out to be from someone else. The text indicated the child might be his. A month later, in August 2018, he consulted with an attorney about bringing a paternity action and soon thereafter filed his first petition with Family Court. However, Mr. F. was unable to locate respondent to have him served and ultimately withdrew the petition for that reason. In April 2019 he located respondent and filed the instant petition.

Respondent Mr. P. testified he was unaware of any prior attempts made by petitioner to establish paternity, but admitted that he moved three times in the last three years. Respondent is keeping his address and O's school confidential from petitioner at the present time.

Petitioner Mr. F. has never been involved in O's life. He was not present at prenatal appointments or at O's birth, has never met O, has provided no financial support, or gifts for birthdays or holidays, including after he located respondent.

Petitioner Mr. F. acknowledged that he will have to provide financial support if a filiation order is entered.

Respondent Mr. P. and his fiancée Ms. K. solely support O. Respondent is employed in the hospital police department of the Erie County Medical Center; Ms. K. also works and contributes her wages to the family's expenses.{**68 Misc 3d at 524}

O calls respondent "daddy" and his fiancée, Ms. K., "mommy." He does not use those names for any other persons. They live together as a family along with respondent's other two children whom O considers his siblings.

Respondent Mr. P.'s position is that O's stable family unit lifestyle would be disrupted by the designation of a third, outside parent, that O already has a father in himself and does not need a second father, and that his fatherly relationship with O would be jeopardized by the designation of a second father.

Petitioner Mr. F. testified it is in O's best interests to get genetic marker testing and, if he is determined to be the biological father, for an order of filiation to be entered. He does not allege that respondent and Ms. K. are not good parents, but petitioner believes that O needs him in his life. Petitioner Mr. F. testified he offers a stable environment for O and would help support O developmentally and financially. If designated O's father, petitioner testified he would be a role model for O, help him with homework, play catch with him, and take him to sporting events. Mr. F. testified that he should be designated O's father because "a boy needs a man in his life to teach him how to be a man and that man should be the boy's father"; that "a boy needs a man to teach him how to get dates"; and that "a boy needs a man to teach him how to be a man in society." While making these statements, Mr. F.'s demeanor expressed disdain for respondent Mr. P. and implied that respondent was incapable of performing this role for O.

The attorney for the child supports respondent's motion to dismiss on the basis of equitable estoppel.

An in camera Lincoln hearing was held with O, who had just celebrated his third birthday. O was enthusiastic and adorable. He has a clear sense of his family and his relationships with its members, including that he clearly identifies respondent Mr. P. as his father.

When paternity is contested, Family Court Act §§ 418 and 532 provide the court with authority to order the mother, the child and the alleged father to submit to one or more genetic marker (DNA) tests. 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 equitable estoppel, res judicata or the presumption of legitimacy of a child born into a marriage.{**68 Misc 3d at 525}

The purpose of equitable estoppel is to preclude a person from asserting a right when he or she has led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. Where a child justifiably relies on the representations that a specific man is his father with the result that he will be harmed by the man's denial of paternity, equitable estoppel may be invoked. (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006].) Equitable estoppel may be invoked either offensively or defensively, to prevent someone from denying paternity or from establishing it. (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010].) The courts impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship. (Matter of Shondel J. v Mark D.) In applying the doctrine of equitable estoppel, the child's best interests are paramount. (Matter of Jonathan C. v Iaishia Q.T., 131 AD3d 1054 [2d Dept 2015].)

The doctrine of equitable estoppel requires the court to first look to the elements of representation, reliance, and detriment. The party raising equitable estoppel issues has the initial burden to establish a prima facie case sufficient to support that claim. If these are shown, the burden then shifts to the opposing party to demonstrate why estoppel should not be applied. (Matter of Sharon GG. v Duane HH., 63 NY2d 859 [1984]; Debra H. v Janice R., 14 NY3d 576 [2010]; Matter of Edward WW. v Diana XX., 79 AD3d 1181 [3d Dept 2010].)

Here, respondent Mr. P. met his prima facie burden. O has resided exclusively with Mr. P. and Ms. K., whom he knows with certainty to be his father and mother. He identifies Mr. P.'s other children as his siblings. They have lived together his entire life and operate as a nuclear unit. It does not matter that O's father is also his biological mother; biology is not dispositive in a paternity petition. What matters is that O identifies Mr. P. and Ms. K. as his parents and has developed strong parent-child bonds with them. Together, Mr. P. and Ms. K. adequately provide for O's physical, emotional and financial needs without any assistance from petitioner Mr. F. This is not a situation where the parental figure failed to carry out the traditional responsibilities of a parent (see e.g. Matter of Starla D. v Jeremy E., 95 AD3d 1605 [3d Dept 2012]), rather, Mr. P. and Ms. K. have acted as parents in every way, and as a result, strong parent-son bonds have formed, bonds which clearly rise to the level of "recognized and operative parent-child relationships." {**68 Misc 3d at 526}(See e.g. Matter of DSS v Timothy C., 114 AD3d 860 [2d Dept 2014].) The burden therefore shifts to petitioner Mr. F. to show it is in O's best interests to conduct the genetic marker testing.

Mr. F. admitted that at the time of conception, he was well aware that Mr. P. was a lesbian and involved in a committed relationship with Ms. K. Mr. F. further admitted that he knew and agreed that Mr. P. and Ms. K. would primarily be raising the child. Although Mr. F. testified he thought he would play some role in the child's upbringing, his testimony lacked specificity and he provided no proof in support of his claim other than his self-serving, vague [*5]testimony. Mr. F.'s veracity is also questionable as his versions of O's conception were not believable. It is petitioner's burden to prove by clear and convincing evidence that there was an intent to co-raise the child and he failed to do so. (See Matter of deMarc v Goodyear, 163 AD3d 1430 [4th Dept 2018].)

Mr. F. is a complete stranger to O. He has never been involved in his care, he did not attend any prenatal appointments, was not present at birth, has never visited with O, has not sent any gifts or provided any financial support and has made absolutely no efforts to step up as a parent other than filing the previous and current paternity petitions. Although he donated his sperm to Mr. P. between October 2015 and April 2016, Mr. F. did not make any efforts to determine if his donation was successful. Instead, Mr. F. testified he became aware that Mr. P. was pregnant in October 2016, when the pregnancy would have been in the third trimester. Even after learning of the pregnancy, Mr. F. did not attempt to attend prenatal appointments, keep in touch with Mr. P.'s progress, or be present at the birth. He did not seek court intervention during the pregnancy or immediately after O was born. While Mr. F. claims he did not know where Mr. P. was residing after O's birth, he demonstrated no efforts to obtain that information until two years later when he filed the first paternity petition. In the meantime, O was being raised by Mr. P. and Ms. K. and flourishing in their care. Where a potential bio-father fails to form a bond with the child, delays taking steps to establish his paternity while another person has fulfilled the father role for the child, he may be estopped from asserting his claim. (See e.g. Darnel J.P. v Lianna Y.D., 150 AD3d 406 [1st Dept 2017]; Matter of Thomas T. v Luba R., 148 AD3d 912 [2d Dept 2017].)

The court must weigh the child's right to know his biological father against any psychological harm or trauma caused by a{**68 Misc 3d at 527} disruption of the already established relationship. (Purificati v Paricos, 154 AD2d 360 [2d Dept 1989].) While there may be no bar to genetic testing when there is an absence of a parent-child bond (see e.g. Matter of Patrick A. v Rochelle B., 135 AD3d 1025 [3d Dept 2016]), when it would be detrimental to the child's interests to disrupt the child's close relationship with an established father figure equitable estoppel should be applied. (Matter of Juanita A. v Kenneth Mark N.) Although O is still young, strong, permanent bonds have formed between O and Mr. P., and a similar mother-son bond has formed between O and Ms. K. (See e.g. Matter of Christopher YY. v Jessica ZZ., 159 AD3d 18 [3d Dept 2018] [operative parent-child bond formed by seven-month-old]; Matter of DSS v Timothy C., 114 AD3d 860 [2d Dept 2014].) Although the truth is important, the child also has a powerful interest in maintaining his relationship(s) with the person(s) he has always known as his father (or mother). (Matter of Jennifer L. v Gerald S., 145 AD3d 1581 [4th Dept 2016]; Matter of Westchester County Dept. of Social Servs. v Arnoldo B., 130 AD3d 743 [2d Dept 2015].)

It is petitioner's burden to prove that it is in O's best interests to conduct the genetic marker testing. However, he has failed to meet that burden. Mr. P. is the only father O has ever known. Mr. F.'s position that he is needed to turn O into a man would likely undermine the role of father that Mr. P. fills for O. The parties' ideology on this issue conflicts and is likely to cause future tensions and difficulties as it is clear that Mr. F. believes Mr. P. is not capable of turning O into a man. Mr. F.'s testimony about how O would benefit from his being designated as father mostly revolved around the need for a male to teach a boy to be a man, rather than reasons that would be universal to all children. One has to wonder whether he would have been interested in establishing paternity if the child had been a female. In any event, O already has a competent, loving father in Mr. P. and is thriving in his care. Although a child can have more than one [*6]father, Mr. F. has failed to demonstrate that it would be in O's best interests to do so in this case. Further, there is evidence that it would be detrimental to O to order the genetic testing as it might jeopardize the relationship O has with Mr. P. (See Matter of Bruce W.L. v Carol A.P., 46 AD3d 1471 [4th Dept 2007]; Matter of Commissioner of Social Servs. v Julio J., 20 NY3d 995 [2013].)

Mr. P. and Ms. K. have assumed 100% of the parenting responsibilities and have taken care of all of O's needs well.{**68 Misc 3d at 528} Together with the children J. and M., they have acted as a family unit, living together continuously throughout O's life. Although O is young, his image of his family, consisting of Mr. P. as his father, Ms. K. as his mother and J. and M. as his siblings would be devasted by an outsider, who merely donated sperm, belatedly asserting parental rights. (Matter of Christopher YY. v Jessica ZZ., 159 AD3d 18 [3d Dept 2018].)

As the Court of Appeals aptly stated in Matter of Shondel J. v Mark D., "situations vary, and the question whether [to apply equitable estoppel] is one for Family Court based on the facts in each case." (7 NY3d at 330.) Here, O has developed a strong father-son bond with Mr. P. and has no relationship with Mr. F. The presence of Mr. F. in O's life would likely undermine Mr. P.' role as O's father and potentially jeopardize O's relationship with the person both parties agree is, and should be, his primary father. The court need not consider the equities between the adult parties or other involved persons as the case turns exclusively on the best interests of the child (Matter of Tanesha H. v Phillip C., 57 AD3d 403 [1st Dept 2008]) and it is the child's interests that are paramount. (Matter of Sarah S. v James T., 299 AD2d 785 [3d Dept 2002].) Thus, although Mr. F. might initially have thought the child was not his, or had difficulty locating Mr. P. to have him served, or even if Mr. P. thwarted Mr. F.'s attempts to locate him, the court's decision must be grounded in what is best for O. DNA testing should only be ordered if the court determines there should not be an estoppel based on the child's best interests. (Matter of Tracy C.O. v Douglas A.F., 66 AD3d 1390 [4th Dept 2009].) Genetic marker testing in this case has the potential to disrupt O's nuclear family and disturb his relationship with the only father he has ever known. It is clearly not in O's best interests to have genetic marker testing and Mr. F. is therefore estopped from obtaining such testing.

Now, therefore, it is hereby ordered that the petition is hereby dismissed with prejudice.