PROCEDURAL HISTORY

The main issue before the court in whether it is in the best interests of two-year-old Noah (DOB September 18, 2007) to have an order of paternity and acknowledgment of paternity vacated pursuant to the mother's motion to vacate when the man legally established as Noah's father, according to undisputed genetic marker testing, is not the biological father. The mother adamantly wants Mr. B. out of her life and her son's life legally. Mr. B., the legal father, adamantly wants to stay in the boy's life—and thus in the mother's life as well.

These two parties never married, but met at a bar in Pennsylvania, where the mother grew up, in the fall of 2006, while the mother was living with another man—whom the mother says must, by process of elimination, be the biological father of Noah. Mr. B. moved from Pennsylvania to Rochester and came back to move petitioner to Rochester to live with him, when the mother called him as she had found herself to be pregnant and in need of help, and Mr. B. was willing to provide help and could have been the biological father. Interestingly, the mother says she told Mr. B. from the beginning that he might not be the father. Mr. B. admittedly knew when he met the mother that she was living with her boyfriend. Mr. B., however, denies that he had been told about the possibility of another man being the father until December 2008, when Noah was already more than one year old and he had visitation pursuant to a consent order.

In this case the mother claims there is only one other possible father—her former Pennsylvania boyfriend, who is apparently disinterested at this time but clearly identified by name in the initial support litigation brought on her behalf by Monroe County Department of Human Services. She has had correspondence with this man and it appears highly likely that he could be located for support purposes. The mother testified, inter alia, she is afraid of Mr. B., that he was physically abusive of the child at issue here, of her and of her daughter, and that although Mr. B. pays child support of $40 per week, she cannot financially survive in the Rochester area and needs to move back to Pennsylvania where she grew up and where many family members reside—as does her former boyfriend, whom she claims must be the biological father of the child. She also testified that the public assistance system in Pennsylvania will help her get a car, among other things.

Mr. B. steadfastly indicates he wishes to continue to have all the rights and responsibilities of fatherhood which were established by his acknowledgment of paternity signed a few days after the child's birth, a custody/visitation agreement entered into when the child was one, and a child support order of $80 every two weeks ($40 per week). Mr. B. offered into evidence much testimony that he has a wonderful father-son relationship with Noah. This is supported by the testimony of his new wife whom he married in August 2009 after a five-month relationship, his new mother-in-law, and his father—and most importantly, by the attorney for the child. While denying any domestic violence against the mother, Mr. B. did admit to dumping a bowl of cereal on the mother's head—a fact testified to by the mother. She has an order of protection against him granted by this court because of the cereal incident, among other [*2]allegations. The mother resided in various women's shelters after leaving Mr. B. and testified to how difficult it was to leave him since she had no other means of support and no relatives or good friends locally.

While Mr. B. denies he cut the hair of the mother's four-year-old daughter (who is simply not his child) in anger—saying he was cutting it because it had been cut the prior year as summer approached (but admittedly not by him), the mother called Child Protective Services when that incident happened. The little girl was found, as claimed by the mother, with part of her hair shoulder length and a 3-inch wide patch of hair on the right side of her head cut to 2-3 inches from the scalp. The little girl confirmed the mother's version of the story according to the CPS report. An indicated CPS finding was made against Mr. B. as a result of this incident. It found not only did he cut the child's hair in anger but he also broke her bed—apparently in anger because she peeled paint off the bedroom wall he had painted for her.In a similar vein, while denying that he has ever abused Noah, Mr. B. explained a bruise under Noah's eye as having happened when Noah rolled over on the changing table and bumped his eye while he was changing him. The mother did not believe this explanation.

The court notes that there are numerous factual disputes, and that Mr. B. has appealed the indicated CPS report involving Noah's sister. For various reasons, however, the court, which has had these parties before it for more than a year, as the trier-of-fact finds the testimony of the mother credible and that of the father not credible. The court particularly finds Mr. B.'s testimony was not credible with respect to the changing table/eye bruise incident involving Noah, and the haircut-broken bed incident regarding his sister. This leads the court to question his testimony generally—and to find in favor of the mother when Mr. B. and the mother disagree on issues of significance. Indeed, the court believes the mother's testimony that she told Mr. B. that he might not be the father before he moved her to Rochester in early 2007—not that he first learned of the possibility he was not the father in December 2008. Indeed, his own father testified that he didn't trust the mother and that he told Mr. B. he should get a paternity test. Mr. B. actually raised the issue of paternity and a genetic marker test in the child support proceedings, indicating the mother had said she would pay for the genetic marker test. It is obvious that Mr. B. should have known from the time he was advised by petitioner of her pregnancy that he might not be the biological father because of his admitted knowledge of her prior relationship and because of the very recent beginning of his own relationship with petitioner.

It is not disputed that Noah M. was born to Brianna S. on September 18, 2007.

Four days later, on September 22, 2007, the mother and Mr. B. signed an acknowledgment of paternity regarding Noah.

The mother and Mr. B. were never married.^[FN1]

On June 12, 2008, before the child was one year old, Mr. B. filed a custody petition, alleging, inter alia, that he is the father of Noah, that the mother is unfit, mentally unstable, on [*3]and off anti-depressants, unstable, violent, neglectful of her other child, and even practices demonic witchcraft.

On September 24, 2008, the support litigation was started when the Department of Human Services - CSEU (hereinafter MCCSEU) as assignee of the mother filed a petition for child support against Joshua B., alleging that Mr. B. was the father of Noah M. (born September 18, 2007) based on the Acknowledgment of Paternity previously signed by both the mother and Mr. B. on September 22, 2007. In the support paperwork, the mother indicated there were two possible fathers. This was apparently initially overlooked.

On October 30, 2008, and with both parties represented by counsel, the parties consented to an order of joint custody, primary residence of Noah with the mother and periods of visitation with Mr. B.

On November 13, 2008, after settling the custody/visitation matter, the parties appeared in the child support proceeding before Support Magistrate Linda Pilato for their first appearance regarding child support. Mr. B. was advised of his right to counsel, and apparently waived that right. The mother appeared with Alecia Spano, Esq., from and on behalf of the MCCSEU. Mr. B. as respondent was advised of his right to a GMT but waived that right and made an admission that he was the father of the subject child. A consent order of filiation was orally made that day and an Order of Filiation and Temporary Support was signed by Support Magistrate Pilato on November 20, 2008 (entered November 21, 2008) setting temporary support at $40.00 per week payable by Mr. B.. According to the transcript of the proceedings, the Support Magistrate indicated Mr. B.'s gross was $19,890 approximately, per year. Mr. B., responded to that by saying "Approximately". The case was adjourned to January 6, 2009 for a fact-finding hearing on a final Order of Support. In fact, his gross for the year was $25,894 according to the January 6, 2009 transcript of support proceedings.

At the January 6, 2009 proceeding, Mr. B. continued to assert that he would represent himself, and almost immediately, informed the Support Magistrate that,

I have recently become aware that Brianna [the mother] has been telling several people that I am not the father of this child. She has actually called me personally about a week after our last court appearance here claiming that I may not be the father of this child and has offered to pay for a DNA test, which is why I did not pay my first $80. . .

Counsel for the CSEU immediately suggested that Mr. B. consult legal counsel. When asked about this, the mother responded, according to the transcript,

I was — I was always telling—you know, ever since I got pregnant, I told the two people. He said he wanted to take care of us no matter what. We're not together anymore. I thought it might be a good idea just to make sure we know the truth. You know?"

After that, it was revealed by counsel for the Monroe County CSEU that the mother had indeed disclosed this information to the CSEU through a questionnaire prepared prior to any filing. Counsel for the CSEU asked for genetic marker testing. The Support Magistrate then directed that a genetic marker test (GMT) be done on the mother, the child and Mr. B. Indeed, with a child of that age a GMT would normally be routinely granted—even if estoppel had been raised. The case was adjourned again to February 27, 2009 for the GMT results. [*4]

On February 2, 2009, the GMT results were certified excluding any possibility that Mr. B. is the biological father of Noah.

Promptly, on February 9, 2009 the mother filed a petition to modify the prior consent order of custody and visitation, asking that Mr. B. be removed from the custody order as the GMT results were made available to her and established that he is not the biological father of Noah.

On February 27, 2009 the Support Magistrate accepted into evidence the GMT results, dated February 2, 2009 (filed with the court on February 15, 2009) and certified pursuant to CPLR 4518(d), which establish that there is a 0.00% probability that Mr. B. is the biological father of Noah M.. Finally Mr. B. indicated that he would be consulting with an attorney, and the case was adjourned to April 6, 2009.

On March 31, 2009, the parties appeared before this court on this Article 6 custody/visitation case. Both were represented by counsel and an attorney for the child was appointed. Ms. Bayer, on behalf of Mr. B., requested a motion date indicating her intention to file a motion to dismiss the mother's petition. Ms. Bayer also requested that this Court take the paternity/child support case which was still pending before Support Magistrate Pilato. The Court agreed to do so and that case was transferred to this Court. The Court set April 30, 2009 for filing papers in support of the father's motion to dismiss mother's petition to remove Mr. B. from the custody/visitation order, and May 7, 2009 for argument.

Though requested, no written motion to dismiss was filed by counsel for Mr. B. However, the child's attorney joined Mr. B.'s oral motion to dismiss. Memos were directed to be served by May 28, 2009 and were received.

On May 7, 2009, the mother filed a petition requesting an order of protection under Docket number O-05369-09. The request for an order of protection was heard ex parte by the undersigned, and a Temporary Order of Protection was granted.

Also on May 7, 2009 the Court ordered a "1034 report" from the Department of Human Services, Child Protective Services (CPS), based on allegations raised with respect to the parties, including an Order of Protection petition filed by the mother against Mr. B.^[FN2]

Also on May 7, 2009 the mother (who had already filed to vacate the custody and visitation order) filed a motion to vacate both the prior order of filiation and acknowledgment of paternity ^[FN3]. All the cases were consolidated before this Court.

On May 12, 2009 the CPS report was received. It raised several issues of concern regarding Mr. B., now hotly disputed, and was shared with all counsel on May 12 and 15, 2009. Argument on the mother's motion to vacate the prior paternity acknowledgment was set for June 4, 2009.

Counsel for Mr. B. and the attorney for the child oppose the mother's motion, essentially agreeing with Mr. B. Counsel for the mother filed a memorandum regarding the issue of [*5]estoppel and asks that the Court proceed to vacate the prior paternity order. Each submission included case law offered in support of the respective positions of the parties.

The Court of Appeals has made a careful review of the issue of estoppel as it applies to paternity cases. In Shondel J. v. Mark D. (7 NY3d 320 [2006]), the Court states:

New York courts have long applied the doctrine of estoppel in paternity and support proceedings. Our reason has been and continues to be the best interests of the child (citing Jean Maby H. v. Joseph H., 246 AD2d 282 [Second Dept, 1998], and Matter of L. Pamela P. v. Frank S., 59 NY2d 1 (1983))". See Shondel J. v. Mark D. 7 NY3d 320 (2006).

In the case at bar both sides argue, of course, that the best interests of the child support their position. There are allegations by both parties against the other as to the fitness of each to care for or spend time with the child. The mother's fitness, of course, is not directly at issue here. Counsel for Mr. B. and the Child's Attorney both ask this court to leave the existing Order of Filiation in place despite the lack of biological relationship, essentially saying that since Mr. B. agreed to be the father, and the mother in the past agreed to name him as the father, and since he has been paying child support and visiting with the child, and has what appears to be a good relationship with the child, leaving that relationship intact is in Noah's best interests.Nonetheless, inherent in continuing Mr. B. as the father when he is not the biological father would be a negation of the child's right, if any, to know who is his biological father and even his biological half-siblings. The child is now age two. No court can know what the future will bring. What is almost a certainty is that Noah will one day, sooner or later, learn that Mr. B. is not his biological father and want to know what happened.Since the mother does not want Mr. B., an ex-boyfriend in her life, and the mother and Mr. B. do not get along, and Mr. B., wants to act as the father of her child when he is not biologically the father, and Mr. B. is remarried, and many, many people know the truth about the paternity situation, it is certainly probable that someone some day will tell Noah that Mr. B. is not his biological father. The mother is likely to do so and certainly within her rights to speak the truth. Mr. B. might tell Noah himself. Mr. B.'s new wife, now in the honeymoon stage, might get angry and tell Noah. Someone else might tell him. Noah might overhear it some day. Whether this conversation goes well or badly, whether it affects the child positively or negatively, whether it would strengthen the relationship between Mr. B. and Noah or destroy it completely cannot be known at this time. What is virtually certain is that Noah is young enough now to forget Mr. B. altogether if he does not see him again.

Another virtual certainty is that if the mother remains on public assistance, and the paternity order regarding Mr. B. is vacated, the municipality paying for that public assistance will pursue the man the mother now says must be Noah's biological father. It could be that this man can afford more child support than Mr. B., and thus would be at least financially better for Noah. If he can pay only as much as Mr. B., or even less, it seems most likely that the mother, who has testified she wants to and plans to return to Pennsylvania to be near her extended family (including her mother, an aunt and uncle, cousins of Noah, etc.), will have a better quality of life if Mr. B. is legally out of her life. She testified she talks to her mother several times a week and [*6]the testimony showed her mother came to visit twice while she was in Rochester. She can be reasonably expected to see more of her mother and extended family if she is in her hometown area in Pennsylvania. Her family will find it much easier to be helpful to her than it is from outside the state. In her Pennsylvania hometown she will have at least some of the emotional support she truly needs—as well as the real option of having a car through a welfare program she testified (without rebuttal) exists in Pennsylvania. The court finds that Noah's interests will be served by having his mother more supported in Pennsylvania with her family near rather than undisputedly isolated in Rochester.

While in Rochester, Noah's mother has been depressed, friendless, without family and adequate resources. Even Mr. B. testified he worked 50 to 60 hours per week while he lived with the mother, and thus she had to care for the children all alone. The mother says Mr. B. and she saw very little of each other while the two parties lived together and Mr. B. supposedly cared about her. There was even testimony that on occasion Mr. B. would take just Noah to family events, leaving her and her daughter behind.

Inherent in the fact that Mr. B. worked 50-60 hours per week, leaving the children with the mother, is that he then trusted the mother to care for Noah and the other child. Though he maligns her ability to care for children now, in this litigation, and a CPS investigation was conducted at his behest with her as a subject, the CPS records reveal there never was an indicated report against the mother. This contrasts with the father against whom there was a credible indicated report, as discussed above. This court simply does not believe many of Mr. B.'s specific allegations against the mother regarding her care of the children. They are not supported by the CPS report which found her adequately and lovingly caring for her children, under difficult circumstances. Certainly, she has room for improvement.

The Family Court Act, in two statutes (§418[a] and §516-a[b][i]) sets forth the process for the Court to follow in an application to vacate a prior paternity determination. According to Family Court Act, § 418(a),

"The court . . .when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. 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 res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test shall be received in evidence. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act."

Clearly, the point of this statute is to provide for reliable tests to be used when paternity is contested, and to establish when a result is strong enough to declare a particular man to be the [*7]father if the result of the test is not rebutted.

According to Family Court Act, § 516-a(a), an acknowledgment of paternity if unchallenged needs no further judicial or administrative proceedings to ratify it.

According to Family Court Act, § 516-a(b)(i), an acknowledgment of paternity

. . . may be rescinded by either signator's filing a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party.

In the case at bar, there was a proceeding to establish a support order. Subsection(b)(i) goes on to say, "The court shall order genetic marker tests or DNA tests for the determination of the child's paternity" (emphasis added), but further,

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 res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. If the court determines, following the test, that the person who signed the acknowledgment is the father of the child, the court shall make a finding of paternity and enter an order of filiation. If the court determines that the person who signed the acknowledgment is not the father of the child, the acknowledgment shall be vacated. (Emphasis added.)

Thus, a GMT is the norm in a support proceeding where there is a question about who is the father, but a GMT is not to be ordered if the court finds a basis therefore under res judicata, equitable estoppel, or the presumption of legitimacy.

In the case at bar, the GMT was directed by the Support Magistrate at a time when the child was fifteen months old, and the testing was not opposed by either party. Had a GMT been opposed based on equitable estoppel—the issue raised now—case law shows that the GMT would have been ordered as a matter of routine given the young age of the child (then not even 16 months). However, and significantly, equitable estoppel was not raised. Nor was any other opposition raised. No hearing was held before the Support Magistrate or a judge, nor was one requested, as there was no objection raised by Mr. B. to the test or to the results being received by the Support Magistrate. Mr. B. had not asserted his right to counsel, but even an attorney then raising equitable estoppel would have been to no avail. (See Shondel J. v. Mark D., 7 NY3d 320, supra; Savel v. Shields, 58 AD3d 1083 [Third Dept, 2009]). Cases where men think they are fathers or may be fathers and find out they are not biological fathers are, unfortunately, a routine part—and sometimes a tragic or distressing part of Family Court litigation.

Interestingly, the only problem Mr. B., without counsel, had regarding the genetic marker test, was who would pay for it. That is clear from the transcript of proceedings on January 6, 2009. Also clear from proceedings is that he, for whatever reason, "would take care of this child as mine. . ." even if he were not the biological father.

The GMT was ordered. The result is clear. Mr. B. is not the biological father. The statute (FCA § 516-a[b][i]) is equally clear: "If the court determines that the person who signed the acknowledgment is not the father of the child, the acknowledgment shall be vacated." (Emphasis added.) [*8]

The support magistrate therefore was required to find that Mr. B. is not the father of the child as a matter of routine. However, because of the unusual procedural posture, the Support Magistrate transferred the case to this court (i.e., a Family Court Judge) for further proceedings. With equitable estoppel now raised in an effort to avoid the impact of the statute, this court nonetheless finds that it is in the best interests of Noah to vacate the acknowledgment of paternity and the order of filiation. If Mr. B. were an unquestionably good father (without an indicated CPS finding and with a kinder attitude and behavior toward the mother), if he were a credible person, if he could afford to provide child support which would raise Noah out of poverty, if he had spent more years in the role of the father to Noah, this court might find it not in the best interests of Noah to vacate paternity. However, this court must deal with the facts it has before it—and they require the court to conclude that keeping this father legally in Noah's life is not in his best interests.

One question that particularly supported this result was when the court, at the end of his testimony, asked Mr. B. in sum and substance what he would do if his legal rights to Noah had been cut off and the mother called and asked for financial help—would he give it? At first he answered as if he thought the question meant how much would he pay to see Noah. The court clarified that was not the question—the question was would he give money to the mother if she called and said she needed money. He thought hard and said if he could be sure the money would go to Noah he would give the money.A far better answer would have been a simple, "Yes." Mr. B. knows that the mother is very needy and dependent on others, including public assistance. He does not seem to appreciate that putting a roof over a mother and child, a telephone in the household, food on the table for the mother and child, and clothes on the backs of a mother and child is in that child's best interests.

Indeed Mr. B.'s control over money was a recurrent theme throughout these proceedings. He minimized his income (either ignorantly or dishonestly) to keep child support for Noah lower than the presumptively correct amount. He maximized the time he had with Noah, claiming it was approximately half of the time even after just settling for 2 days out of 7 per week, in order to support a variance in child support. He did not oppose a genetic marker test—just the possibility of paying $159 for it.

While this vacature of paternity is to some a troubling result in a troublesome case, at least it is a result which will remove the reality of having a boy raised in part by a man whom his mother fears and does not like and who will undoubtedly at some point tell him is not his father, or confirm that fact after someone else has stated it. Such a scenario cannot be prevented, particularly in a matter where the hostility runs deep—as it must in a case involving domestic violence, feelings of helplessness, and child protective filings—as well as the unusual situation of a man insisting on staying in a woman and her child's life when he is not the biological father of her child. At some point, such a child would wonder why a man insists on pretending to be his father. At some time Mr. B. may wish to stop paying child support and walk away. Visitation cannot be forced on him. The man who is actually Noah's biological father can presumably be found with a little effort, since the mother has emailed him within the last year, knows his name and where he is from. She believes she knows the town he lives in—and it is only a few minutes away from where she intends to move. Perhaps having him established as the legal father would offer a better reality for Noah. He might even some day seek to establish his own paternity out of [*9]an improved sense of responsibility or for any other reason.

Only one path can be taken, and at least the one which eliminates a man from Noah's life who is not his father is an honest one. This court firmly believes that vacating paternity eliminates the legal rights of a dishonest, sometimes abusive man. This court finds that keeping Mr. B. entangled in Ms. S.'s and Noah's life is not a net plus situation. This will put to an end the litigation between two adults who were never even committed enough to each other to get married. Neither even claimed to have ever loved the other. It will get a man whom this court finds Ms. S. quite reasonably claims to fear out of her life. It will allow the child's mother the opportunity to become as strong and healthy a mother to Noah as she can be in her hometown, with her family, and thus enable her to be the best mother she can be.

At this point in time, Mr. B. is the one with the support of his family—his wife, his father, his mother-in-law—while Ms. S. has no one. This simply is not reasonable. Furthermore, no one can predict how long Mr. B.'s recent and unusually quick marriage will last and provide support for him. His new wife testified to marital disagreements with Mr. B.—clearly doing her best to indicate everything was essentially good in her new marriage, but she appeared to be understandably guarded in her remarks and not simply open and honest.

This paternity vacature case is a case which never should have happened. It would be helpful if the legislature were to enact a law which would not allow any acknowledgment of paternity to be effective until actual biological paternity is established by the simple, routine use of a genetic marker test. Then a man who is willing to step up to the plate and be a father would only be allowed to do that via an acknowledgment of paternity if he is indeed the biological father. The Family Court has far too many cases of this nature and they could all be easily eliminated by having the genetic marker test done up front.

A separate order is issued herewith and in accord with this decision.

DATED: December 1, 2009

Rochester, NY

HON. PATRICIA E. GALLAHER

Family Court Judge

PURSUANT TO §1113 OF THE FAMILY COURT ACT AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. C:\htformat\f5247990.txt