| Matter of Smythe v Worley |
| 2010 NY Slip Op 03339 [72 AD3d 977] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Devona Smythe, Petitioner, v AaronWorley, Respondent. Karen P. Simmons, Attorney for the Child, NonpartyAppellant. |
—[*1] Joel Kahn, Brooklyn, N.Y., for respondent.
In a proceeding pursuant to article 5-B of the Family Court Act, the attorney for the childappeals, by permission, from an order of the Family Court, Kings County (O'Shea, J.), dated July14, 2009, which, after a hearing on the issue of equitable estoppel and upon a decision datedJune 23, 2009, finding that the mother failed to meet her prima facie burden of demonstratingthat the putative father is equitably estopped from challenging paternity, granted the putativefather's application for the parties and the subject child to submit to genetic marker testing.
Ordered that the order dated July 14, 2009, is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Kings County, for a new hearingon equitable estoppel, and for a new determination of the putative father's application for theparties and the subject child to submit to genetic marker testing.
Devona Smythe (hereinafter the mother) commenced this proceeding at the behest of theState of Georgia pursuant to the Uniform Interstate Family Support Act (hereinafter UIFSA) toestablish the putative father's paternity of the child and to obtain child support. In response, theputative father requested genetic marker testing. Thereafter, the Family Court conducted anequitable estoppel hearing at which the mother presented evidence that the putative father heldhimself out as the child's biological father and developed a parent-child relationship with thechild for several years, and that the child had developed relationships with members of hisfamily. Nevertheless, the Family Court granted the putative father's application to dismiss theequitable estoppel defense and for genetic marker testing based upon its finding that the motherfailed to present evidence that the child would be harmed by such testing.
The paramount concern in applying equitable estoppel in paternity cases is the best interestsof the subject child (see Matter ofShondel J. v Mark D., 7 NY3d 320, 326 [2006]; Matter of John Robert P. v Vito C., 23 AD3d 659, 661 [2005]; Matter of Maurice T. v Mark P., 23AD3d 567 [2005]). "[W]here a child justifiably relies on the representations of a man that heis his or her father with the result that he or she will be harmed by the man's denial of paternity,the man may be estopped from making such a denial" (Matter [*2]of Jose F.R. v Reina C.A.,46 AD3d 564, 564 [2007]). Additionally, "[C]ourts are more inclined to impose equitableestoppel to protect the status of a child in an already recognized and operative parent-childrelationship" (Matter of Sarah S. v James T., 299 AD2d 785, 785 [2002] [internalquotation marks omitted]; see Matter ofGreg S. v Keri C., 38 AD3d 905, 905 [2007]).
Here, the hearing testimony demonstrated that the putative father and the child, who was 15years old at the time these proceedings commenced, had established a parent-child relationshipand that the child had developed relationships with members of his family. From these facts, theFamily Court should have found that there was sufficient evidence of harm to the child since thechild changed his position by forming a bond with the putative father and his family (seeMatter of Shondel J. v Mark D., 7 NY3d at 328; see also Matter of Glenda G. v Mariano M., 62 AD3d 536, 536[2009]; Matter of Tanesha H. v PhillipC., 57 AD3d 403 [2008]; Matter of Jose F.R. v Reina C.A., 46 AD3d at 564; Matter of Westchester County Dept. ofSocial Servs. v Robert W.R., 25 AD3d 62, 71 [2005]). Under these circumstances, theevidence indicating that the parent-child relationship was somewhat limited did not preclude theapplication of the doctrine of the equitable estoppel (see Matter of Glenda G. v MarianoM., 62 AD3d at 536; Matter of Sarah S. v James T., 299 AD2d at 785-786).
Consequently, the Family Court should have determined that the mother met her prima facieburden of demonstrating that the putative father is equitably estopped from challengingpaternity, denied the putative father's motion to dismiss, and continued the hearing to afford himan opportunity to present evidence that it would be in the child's best interests to order geneticmarker testing. Covello, J.P., Florio, Miller and Eng, JJ., concur.