| Matter of Aikens v Nell |
| 2009 NY Slip Op 04647 [63 AD3d 1662] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Juanita Aikens, Respondent, v Kenneth Mark Nell,Appellant. |
—[*1] Susan Gray Jones, Law Guardian, Canandaigua, for Angela M.S.
Appeal from an order of the Family Court, Ontario County (Craig J. Doran, J.), entered May21, 2008 in a proceeding pursuant to Family Court Act article 4. The order denied respondent'sobjections to the order of the Support Magistrate.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother commenced this proceeding seeking a determination thatrespondent is the father of her then-12-year-old child and seeking an award of child support.Respondent appeals from an order denying his objections to the order of the Support Magistratedirecting him to pay child support following the entry of an order of filiation. Contrary to thecontention of respondent, Family Court properly determined that he may not invoke the doctrineof equitable estoppel. "[W]hile the doctrine of equitable estoppel is applicable in paternityproceedings where it is invoked to further the best interests of the child . . . , itgenerally is not available to a party seeking to disavow the allegation of parenthood for thepurpose of avoiding child support" (Matter of Dowed v Munna, 306 AD2d 278, 279[2003]; see Matter of Ruby M.M. vMoses K., 18 AD3d 471, 472 [2005]). We reject the further contentions of respondentthat he was denied both the right to counsel and to the effective assistance of counsel. The recordestablishes that, at the initial appearance on the petition, the Support Magistrate advisedrespondent of his right to counsel and that he elected to proceed pro se (see Matter of Falconv Accardi, 193 AD2d 1063, 1064 [1993]; cf. Matter of Allegany County Dept. of SocialServs. v Thomas T., 273 AD2d 916, 917 [2000]). Although the Support Magistratefailed to advise respondent that he had a right to have counsel assigned if he was financiallyunable to retain counsel (see Family Ct Act § 262 [a]), we conclude thatrespondent waived his right to appellate review of that omission by failing to raise it in hiswritten objections to the order of the Support Magistrate (see § 439 [e]; Matterof Meriwether v Howe, 286 AD2d 832, 833 [2001], lv denied 97 NY2d 609 [2002];cf. Allegany County Dept. of Social Servs., 273 AD2d at 917). Finally, we reject thecontention of respondent that he was denied effective assistance of counsel.Present—Centra, J.P., Peradotto, Green, Pine and Gorski, JJ.