| Matter of White v Wilcox |
| 2013 NY Slip Op 06156 [109 AD3d 1145] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of Richard W. White, Jr., Appellant, vAmanda Wilcox, Respondent. Teresa M. ParÉ, Esq., Attorney for the Child,Appellant. (Appeal No. 1.) |
—[*1] Shirley A. Gorman, Brockport, for petitioner-appellant. Marybeth D. Barnet, Canandaigua, for respondent-respondent.
Appeals from an amended order of the Family Court, Ontario County (Frederick G.Reed, A.J.), entered June 11, 2012 in a proceeding pursuant to Family Court Act article5. The amended order dismissed the paternity petition.
It is hereby ordered that said appeals from the amended order insofar as it sua spontegranted relief are unanimously dismissed and the amended order is affirmed withoutcosts.
Memorandum: The petitioner in appeal No. 1 appeals from an amended order that,inter alia, granted the motion of the respondent in appeal No. 1, i.e., the mother of thesubject child, to dismiss the petitioner's paternity petition with respect to the child. TheAttorney for the Child (AFC) appeals separately from that amended order, in whichFamily Court also sua sponte granted other relief. Appeal Nos. 2 and 3 are from twofurther orders in which the court also sua sponte granted relief. We note at the outset thatappeal Nos. 2 and 3, as well as those parts of the appeals from the amended order inappeal No. 1 in which the court sua sponte granted relief, must be dismissed. It is wellsettled that " '[n]o appeal lies as of right from an order [that] does not decide a motionmade on notice,' " and the appellants have not sought leave to appeal (Matter of Mary L.R. v VernonB., 48 AD3d 1088, 1088 [2008], lv denied 10 NY3d 710 [2008]; seeSholes v Meagher, 100 NY2d 333, 335 [2003]; Mohler v Nardone, 53 AD3d 600, 600 [2008]).
With respect to that part of appeal No. 1 that is properly before us, petitioner and theAFC contend that the court was required to apply the doctrine of equitable estoppel tobar the mother from denying that petitioner is the father of the subject child. We rejectthat contention. "[T]he Court of Appeals has recently reiterated that a nonbiological,nonadoptive parent does not have standing to seek visitation when a biological parentwho is fit opposes it, and that equitable estoppel does not apply in such situations evenwhere the nonparent has enjoyed a close [*2]relationshipwith the child and exercised some control over the child with the parent's consent" (Matter of Palmatier v Dane, 97AD3d 864, 865 [2012]; seeDebra H. v Janice R., 14 NY3d 576, 589-597 [2010], rearg denied 15NY3d 767 [2010], cert denied 562 US —, 131 S Ct 908 [2011]; Matterof Alison D. v Virginia M., 77 NY2d 651, 656-657 [1991]). It is well settled "thatparentage under New York law derives from biology or adoption" (Debra H., 14NY3d at 593), and that "Alison D., in conjunction with second-parent adoption,creates a bright-line rule that promotes certainty in [custody situations] otherwise fraughtwith the risk of 'disruptive . . . battle[s]' . . . over parentage asa prelude to further potential combat over custody and visitation" (id. at593-594). As the Court of Appeals has stated, "any change in the meaning of 'parent'under our law should come by way of legislative enactment rather than judicialrevamping of precedent" (id. at 596).
The remaining contentions of the AFC in appeal No. 1, insofar as they are properlybefore us, are without merit. Present—Smith, J.P., Carni, Sconiers and Valentino,JJ.