Family Court, Erie County, March 13, 2017

David Charles Crowther for petitioner.

Michael Owen Morse and Amy Klein Szymoniak for respondent.

Jamie L. Codjovi, Attorney for the Child.

Before the court is a single petition filed by Emily H. (hereinafter referred to as mother) against Gregory O. seeking to establish [*2]paternity of the subject child, Jared (15). Mother seeks an order of the court directing a genetic marker test to determine paternity. The attorney for Jared supports this request; however, Gregory objected, invoking the doctrine of equitable estoppel as a defense, and requested a hearing.

An equitable estoppel hearing was held with testimony occurring on February 8, 2017, and February 23, 2017. In addition to mother and Gregory the court heard from two other witnesses, to wit: Kathryn O. (Gregory's wife) and Jared, the subject child. This court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and assess their respective character and credibility. This court has further considered the petition and documentary evidence before it together with the applicable statutory and case law and now makes the following material findings of fact and conclusions of law.

Except for a few particulars, most of the factual background in this matter is undisputed. Both parties agreed that they were intimate one time around Jared's conception. Both parties agreed that mother advised Gregory of her pregnancy and alerted him when Jared was born. Both parties agreed that mother filed a paternity petition with this court in or around January 2002 shortly after Jared's birth, and thereafter withdrew her petition. Petitioner's exhibit 1 in evidence is a copy of the order of dismissal dated March 1, 2002.

Mother testified that she had a conversation with Kathryn in or around 2002 wherein she alleges Kathryn threatened that if the paternity test came back positive they would "fight her" for custody of Jared. After this conversation, mother withdrew her{**58 Misc 3d at 973} paternity petition. The record is absent of any inference that she withdrew based on a belief that Gregory was not the father. To the contrary, there is every reason to believe that mother thought (and still thinks) Gregory is the biological father and that the test will confirm her belief.

Kathryn testified that although she questioned the veracity of paternity, she never threatened mother. She testified that she extended her willingness (and Gregory's) to be "more than happy" to pay child support and "have the baby in our life." The court found mother more credible than Kathryn on this subject.

Although Kathryn acknowledged that there would be no harm to herself or Gregory should the court grant an order directing a genetic marker test now, Gregory testified to quite the contrary. Gregory made it clear that he is not interested in being a father to Jared at this stage of his life and described the instant case as "sixteen (16) years lost." Gregory maintained repeatedly that he was "denied an opportunity to take a paternity test" in 2002 when mother withdrew her petition. Upon cross-examination by Jared's attorney, he conceded that he was never "denied" the opportunity of a genetic marker test, he just never sought one.

Gregory admitted that "it was one night I had sex with her" and that mother told him thereafter that she was pregnant when they ran into one another in a bar. Gregory also admitted that he was never told that he was not Jared's father. He testified that he has had almost no contact with Jared and described him as "a kid I know nothing about." Gregory [*3]originally testified that he had only met Jared once by happenstance in 2014 at his father's home stating, "I walked in and saw what was going on—my father was having a birthday party for Jared—I unexpectedly showed up, said hi and left."

Jared testified in open court that he believes Gregory to be his father. Although he acknowledged that he has had little contact with Gregory, he was able to recall more than just the one incident Gregory acknowledged. The court found Jared far more credible than Gregory on this subject.

It was undisputed that mother has been married to Jared's stepfather, Dennis, for approximately seven years. Based on Jared's testimony he was never under any impression that Dennis was his father, as he has believed from the "age of 5 or 6" that Gregory was his father—long before Dennis came to reside with mother. Jared testified that he does not identify{**58 Misc 3d at 974} Dennis as a "father figure." Dennis was not called as a witness. Jared testified that he has established a relationship with Gregory's family over the past two years or so, calling Gregory's father his "grandpa" and Gregory's sister his "aunt." He was very clear that he wants this genetic marker test to prove that Gregory is his father. Further, Jared was clear in recognizing the risk of the genetic marker test and testified that if the test were to prove that Gregory was not his father, it would not negatively impact his life. It appeared to the court that for Jared, the burden of "not knowing" has been a far more painful sentence than the truth.

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 or DNA marker 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.

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 of a man that he is her father with the result that she will be harmed by the man's denial of paternity, the man may be estopped from asserting that denial. (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006].)

In the instant case, Gregory is invoking the doctrine of equitable estoppel defensively and relies strongly upon the case of Matter of Karen G. v Thomas G. (109 AD3d 915 [2d Dept 2013]). There is no question that in appropriate circumstances, the doctrine of equitable estoppel may be asserted defensively by a purported biological father to prevent a child's mother from asserting paternity where a genetic test would not be in the child's best interests. Although the facts may be similar, this court finds the Karen G. case entirely distinguishable from the one at bar.

In Karen G., the Second Department reversed the Orange County Family Court for adjudicating the respondent to be the father of the subject child based on the doctrine of equitable estoppel. The Family Court had found that a genetic marker{**58 Misc 3d at 975} test in that matter was not in the child's best interests because he was 16 years old, but further determined that the appellant (respondent father) was equitably estopped from denying paternity and issued an order of filiation. The glaring distinction between Karen G. and the instant matter is that this court finds a genetic marker test to be very much in the child's best interest.

The Court of Appeals has repeatedly held that the paramount concern applicable to equitable estoppel in paternity proceedings has been and continues to be the best interests of the child. (Shondel J.; Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010].) Although an adverse interest may be taken against mother for her failure to pursue paternity, according to the Court of Appeals, "equitable estoppel is only to be used to protect the best interests of the child." (Juanita A. v Kenneth Mark N. at 4.)

Jared is entirely innocent in the failings of mother and Gregory to establish paternity in his infancy. Although Gregory emphasized that taking a genetic marker test now after so many years would be a burden to himself, he was unable to articulate what damage would befall Jared. In fact, Jared and mother testified very clearly that the damage to Jared's psyche would come from being denied this opportunity to take a genetic marker test—whatever the results show. Jared's identity hangs in the balance of knowing the truth about himself. For Jared, knowing for sure who his father is completes his story.

As the Court of Appeals aptly stated in the Shondel J. case, "[s]ituations vary, and the question whether extinguishing the relationship and its attendant obligations will disserve the child is one for Family Court based on the facts in each case." (7 NY3d at 330.) In the instant case, preventing the genetic marker test in furtherance of Gregory's equitable estoppel claim will harm Jared and leave him in a worse position than if this petition had never been brought. He identifies Gregory as his father and wants proof to settle the issue once and for all. Jared's mother strongly supports the genetic marker test as being in his best interests.

There was no evidence demonstrating that the relationship between Jared and his stepfather, Dennis, needs protection from a genetic marker test. Certainly, Jared testified that he does not identify Dennis as his father or even a "father figure." There was absolutely no testimony that Jared would suffer irreparable loss of status, destruction of his family image or{**58 Misc 3d at 976} other harm to his physical or emotional well-being if a genetic marker test were permitted. (Matter of Starla D. v Jeremy E., 95 AD3d 1605 [3d Dept 2012]; Matter of John J. v Kayla I., 137 AD3d 1500 [3d Dept 2016].) To the contrary, the preponderance of the evidence established that it would serve Jared's best interests to order a genetic marker test in this matter.

To the extent that Gregory argues mother waited too long to re-file her paternity petition this court only reiterates the Shondel J. holding that "the issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child." (7 NY3d at 330.)

The court after a review of all the evidence and being in a position to observe the demeanor and credibility of the witnesses finds that, in the totality of the circumstances, the [*5]doctrine of equitable estoppel should not prevent the genetic marker testing of the parties and child and as such the defense of equitable estoppel is dismissed.

Now, therefore, the court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the parties and attorney for the child of the results of these searches; and the court having considered and relied upon the results of these searches in making this decision it is hereby ordered that mother, Gregory and Jared shall submit to a genetic marker test at the expense of mother.