| Matter of Weaver v Durfey |
| 2012 NY Slip Op 01908 [93 AD3d 1185] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Elsworth L. Weaver, Appellant, v Pamela L.Durfey et al., Respondents. |
—[*1] Leonard G. Tilney, Jr., Lockport, for respondents-respondents. Kathleen M. Contrino, Attorney for the Child, North Tonawanda, for Samantha D.
Appeal from an order of the Family Court, Niagara County (David E. Seaman, J.), enteredFebruary 17, 2011 in a proceeding pursuant to Family Court Act article 6. The order dismissedthe petition for visitation and custody.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from an order dismissing his petition seeking, inter alia,visitation with respondents' daughter. Family Court (John F. Batt, J.) dismissed his prior petitionseeking to establish paternity of the child. The court found that respondents were married whenthe child was born and at the time of the hearing on the paternity petition and that, based uponpetitioner's admissions, he had acted as a friendly neighbor to the child, although he had regularand significant contact with the child with respondents' consent. The court therefore determinedthat it was not in the best interests of the child to disrupt her legitimate paternal relationship withrespondent father.
After he perfected his appeal from the prior order dismissing the paternity petition, petitionerdiscontinued that appeal based on his agreement with respondents that respondent mother and thechild would participate in DNA testing, which revealed a probability of 99.99% that petitioner isthe child's biological father, and that respondents would permit petitioner to visit with the child.The child subsequently began to receive Social Security benefits as petitioner's biological child.Thereafter, respondents refused to permit petitioner to visit with the child, and he filed a petitionseeking, inter alia, visitation based upon the DNA test results. Family Court (David E. Seaman,J.), determined, inter alia, that the petition was barred by res judicata and dismissed the petition.We affirm.
"The resolution of the instant proceeding presents a coalescence of the various societalinterests promoted by the doctrine of res judicata, particularly the need for finality, stability and[*2]consistency in family status determinations" (Matter ofMichael H. v Carole S.D., 198 AD2d 414, 415 [1993], lv denied 83 NY2d 753[1994]). Thus, the court properly determined that it was prohibited by the doctrine of res judicatafrom considering petitioner's biological parental status as a basis for determining his standing toseek visitation with the child (see generally Matter of Kelley C. v Kim M., 278 AD2d893, 893 [2000]). Inasmuch as petitioner has no legal standing to seek visitation with the child,we conclude that the court properly dismissed the petition (see Michael H., 198 AD2d at415). Present—Scudder, P.J., Smith, Fahey, Carni and Sconiers, JJ.