| Matter of Commissioner of Social Servs. v Victor C. |
| 2012 NY Slip Op 00010 [91 AD3d 417] |
| Jnury 3, 2012 |
| Appellate Division, First Department |
| In the Matter of Commissioner of Social Services, on Behalf ofEdith S., Respondent, v Victor C., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for respondent. D. Philip Schiff, New York, attorney for the child.
Order, Family Court, New York County (Jody Adams, J.), entered on or about August 6,2010, which denied respondent's request for genetic marker testing and declared him to be thefather of the subject child, unanimously affirmed, without costs.
Respondent's procedural objection challenging a portion of the paternity hearing as havingbeen improperly held before a Support Magistrate who lacked authority to determine estoppelissues in a contested proceeding, is unavailing. The Support Magistrate properly referred thematter to a Family Court Judge pursuant to Family Ct Act § 439 (b) when the issue ofequitable estoppel was raised. The transfer was consistent with the rule that the "Family Courtshould consider paternity by estoppel before it decides whether to test for biological paternity"(Matter of Shondel J. v Mark D., 7NY3d 320, 330 [2006]). The adequacy of the evidence presented before the SupportMagistrate on the issue of biological paternity is irrelevant, since that evidence was not reliedupon by the Family Court Judge.
The evidence presented at the hearing established that the 13-year-old child considersrespondent to be her father, enjoys visiting with him, and has a familial relationship with hisrelatives, including his mother and other children. It further established that the child callsrespondent, "dad," that he never dissuaded her from doing so, and that respondent's mother hasalways held herself out as the child's grandmother. Furthermore, a social worker who interviewedthe child testified that subjecting the adolescent child, who wishes to have a stronger relationshipwith respondent, to genetic marker testing would be emotionally damaging for her at this age.Under these circumstances, although the relationship between respondent and the child wassomewhat limited, the Family Court properly concluded that the best interests of the child [*2]require that respondent be estopped from denying paternity (see Matter of Smythe v Worley, 72AD3d 977 [2010]; Matter ofGlenda G. v Mariano M., 62 AD3d 536 [2009], lv denied 13 NY3d 708 [2009]).Concur—Gonzalez, P.J., Andrias, DeGrasse, Richter and Abdus-Salaam, JJ.