| Matter of Juan A. v Rosemarie N. |
| 2008 NY Slip Op 08120 [55 AD3d 827] |
| October 21, 2008 |
| Appellate Division, Second Department |
| In the Matter of Juan A., Appellant, v Rosemarie N.,Respondent. |
—[*1] Helene Chowes, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Judith Munger of counsel), attorneyfor the child.
In a proceeding to establish paternity pursuant to Family Court Act article 5, the putative fatherJuan A. appeals from an order of the Family Court, Kings County (Pearl, J.), dated December 5,2007, which, after a hearing, denied his request for a paternity test and dismissed his petition for anorder of filiation declaring him to be the father of the subject child.
Ordered that the order is affirmed, with costs.
At the time of the proceeding, the respondent Rosemarie N. was the mother of four children, theeldest of whom was the daughter of the petitioner Juan A. On May 11, 2006 the petitioner sought toestablish paternity over the respondent's second eldest child (hereinafter the child) who was born onAugust 4, 1998.
At a hearing on the issue of whether the petitioner should be equitably estopped from asserting aclaim of paternity, the petitioner testified, inter alia, that he engaged in sexual relations with therespondent during the critical time of conception. He stated that he lived with the respondent during herpregnancy and for several months thereafter. The petitioner also testified that the child referred to himas "daddy" during [*2]her younger years but thereafter referred to himby the name of Mike or by another nickname. The petitioner was not present during the birth of thechild and has not participated in the child's upbringing. The respondent occasionally permitted the childto accompany the eldest daughter on court-ordered visitation with the petitioner, explaining that thechild expressed feelings of jealousy with respect to the activities that the eldest daughter wasparticipating in during visitation.
After the hearing, the Family Court denied the petitioner's request for a paternity test and dismissedthe petition on the basis of the doctrine of equitable estoppel. We affirm.
"The paramount concern in applying equitable estoppel in [paternity] cases has been, and continuesto be, the best interests of the child" (Jean Maby H. v Joseph H., 246 AD2d 282, 285 [1998];see Matter of John Robert P. v Vito C.,23 AD3d 659, 661 [2005]). In situations where an individual has assumed the role of a fatherand where the petitioning putative father has neglected to assume such a role, the petitioning putativefather has been estopped from asserting a claim of paternity (see Matter of John Robert P. v VitoC., 23 AD3d at 660). Here, it was undisputed that the respondent's husband was present at thehospital on the day of the child's birth, financially supported the child since her birth, lived with the childsince his marriage to the respondent in April of 2001, was actively engaged in the child's schooling, andestablished a loving father-daughter relationship with the child over the first seven years of her life. Heholds her out to be his daughter and the child refers to him as "daddy." The Family Court waspresented with sufficient evidence at the hearing and at an in camera interview with the child to makethe determination that it was in the best interests of the child to equitably estop the petitioner fromasserting a claim of paternity (see Matter ofAntonio H. v Angelic W., 51 AD3d 1022 [2008]; Matter of Greg S. v Keri C., 38 AD3d 905 [2007]; Matter of John Robert P. v Vito C., 23AD3d 659 [2005]; Matter of Ellis v Griffin, 308 AD2d 449 [2003]; cf. Matter ofWalker v Covington, 287 AD2d 572 [2001]). Accordingly, the Family Court properly denied thepetitioner's request for a paternity test and dismissed the petition. Santucci, J.P., Dillon, Dickerson andChambers, JJ., concur.