| Matter of Merritt v Allen |
| 2012 NY Slip Op 07113 [99 AD3d 1006] |
| October 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jonathan H. Merritt, Sr.,Appellant, v Bethann Allen, Respondent. (Proceeding No. 1.) In the Matter of JonathanH. Merritt, Sr., Appellant, v Bethann Allen, Respondent. (Proceeding No. 2.) |
—[*1]
Michael N. Kelsey, Salt Point, N.Y., for respondent.
James Meier, Poughkeepsie, N.Y., attorney for the child.
In a paternity proceeding pursuant to Family Court Act article 5, and a related child supportproceeding pursuant to Family Court Act article 4, the petitioner appeals from (1) an order of theFamily Court, Dutchess County (Forman, J.), dated October 7, 2011, which granted the mother'smotion to dismiss his petition to set aside an acknowledgment of paternity dated December 22,2000, direct a paternity test, and discontinue his payment of child support, and (2) an order of thesame court dated October 25, 2011, which dismissed his petition to modify a prior order of childsupport dated January 25, 2008, vacated an order of the same court dated February 7, 2011,directing that the petitioner's child support payments be held in escrow, and released those fundsto the mother.
Ordered that the orders are affirmed, without costs or disbursements.
Pursuant to Family Court Act §§ 418 (a) and 532 (a), no paternity test shall beordered upon a written finding by the court that it is not in the best interests of the child on thebasis of, inter alia, equitable estoppel. The paramount concern in applying equitable estoppel inpaternity cases is the best interests of the child (see Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]; Matter of Seth P. v Margaret D., 90AD3d 1053, 1054 [2011]). Here, contrary to the petitioner's contention, the best interests ofthe child support the Family Court's determination to invoke the doctrine of equitable estoppel ingranting the mother's motion to dismiss his petition to set aside an acknowledgment of paternitydated December 22, 2000, direct a paternity test, and discontinue his payment of child support.Since August 2006, upon the petitioner's consent, he has been paying support for the child. Thepetitioner has sought and been granted visitation with the child, and the child understands thepetitioner to be his father (see Matter of Shondel J. v Mark D., 7 NY3d at 328).[*2]
The petitioner's remaining contention is without merit.
Accordingly, the Family Court properly granted the mother's motion to dismiss the petition toset aside the acknowledgment of paternity, direct a paternity test, and discontinue the payment ofchild support, and properly dismissed the petition to modify a prior order of child support datedJanuary 25, 2008, vacated an order of the same court dated February 7, 2011, and directed thatthe petitioner's child support payments held in escrow be released to the mother. Rivera, J.P.,Chambers, Hall and Roman, JJ., concur.