Erie Cnty. Dep't of Soc. Servs. ex rel. J.F. v. R.P.
| Decision Date | 19 February 2020 |
| Docket Number | P-04118-19 |
| Citation | 68 Misc.3d 520,126 N.Y.S.3d 303 |
| Parties | In the Matter of a UIFSA Paternity Proceeding, ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES ON BEHALF OF J.F., Petitioner, v. R.P., Respondent. |
| Court | New York County Court |
MICHAEL F. McPARTLAN, ESQ., Attorney for Petitioner, J.F
CECILE D. DORLIAE, ESQ., Attorney for Respondent, R.P.
PETER P. VASILION, ESQ., Attorney for the Child, O.P.
Brenda M. Freedman, J. Petitioner, J.F. ["Petitioner" or "Mr. F."] filed a Paternity Petition on March 12, 2019 against Respondent, R.P. ["Respondent" or "Mr. P."] seeking to establish himself as father to O.P., born December, 2016 ["O"]. Respondent moved to dismiss the Petition on the basis of Equitable Estoppel; Petitioner opposed. The Motion was granted to the extent that a Hearing was scheduled. The Hearing was held on November 22, 2019. Both parties testified; no other witnesses were called. An In-camera Lincoln Hearing was held with the child, O on December 6, 2019. All parties were provided an opportunity to submit written summations and memoranda of law.
Now, upon all the pleadings and proceedings held herein and upon the Court's unique opportunity to observe and evaluate the demeanor, credibility, temperament and sincerity of each witness, to review the pertinent statutes and case law and apply it to the evidence adduced at the Hearing, I render the following Findings of Fact and Conclusions of Law, Decision and Order:
Respondent Mr. P. is the natural birth mother of the subject child, O. Respondent testified that he recently transitioned to become a male, uses the name "A" (a male first name) and prefers masculine pronouns. In deference to that preference, the Court shall use masculine pronouns to refer to Respondent.
Respondent Mr. P. has three children, J., age 10; M., age 8; and O, the subject child, age 2 at the time the Petition was filed. Of the three children, only O is biologically related to Respondent, the other two were adopted by him. All three children reside with Respondent and his fiancé, Ms. K. Respondent Mr. P. has been in a continuous relationship with Ms. K. throughout all relevant time frames herein including during the period of conception. O has lived his entire life with both of them. Mr. P. and Ms. K. plan to marry August 15, 2020. They are in the process of building a house and are currently renting a home until it is completed.
O is a healthy, developmentally appropriate young boy with no special needs.
Petitioner Mr. F. and Respondent Mr. P. became acquainted in September, 2015 while they were both working security jobs at Mercy Hospital. Petitioner heard Respondent talking about wanting to conceive a child and offered to donate his sperm.
There is no dispute that at the time of these discussions, Petitioner Mr. F. knew that Respondent Mr. P. was a lesbian and was in an established relationship with Ms. K.
There was contradicting testimony about how Respondent became pregnant. Respondent Mr. P. testified that he became pregnant with O through artificial insemination and denied ever having sexual intercourse with Petitioner. Respondent testified he received sperm donations from two males, Petitioner and another; that they did not use an agency; this was a private, at-home insemination with a syringe, and neither sperm donor was present. Respondent admits it is possible that Petitioner is the biological father of O.
In direct contradiction to Respondent's testimony, Petitioner Mr. F. testified that he had sexual intercourse with Respondent once a week every week from October, 2015 until April, 2016 except for a period of one month. This testimony however, was not credible, especially given that Respondent Mr. P. was a lesbian, in a committed relationship, Mr. F. admitted knowing this, and Mr. P. credibly testified he always dressed as a man.
The parties disputed whether there was any agreement between them regarding the role Mr. F. would play in the child's life. There is no written agreement. Respondent Mr. P. testified that prior to the birth, it was understood between the parties that Petitioner would not have any role in the child's life. When the child was old enough to understand artificial insemination, Respondent and Ms. K. would tell the child about the sperm donors and leave it to the child to follow up if s/he was interested in meeting the donor. Mr. P. did not offer any further evidence of this agreement. After O was born, Respondent testified, he and Ms. K. typed up a written agreement wherein Mr. F. would waive any rights or obligations to O and asked Petitioner to sign it, but Petitioner refused. However, Petitioner denied ever seeing a written agreement prepared by Respondent.
Petitioner Mr. F. admitted that at the time he agreed to donate his sperm he knew that any child resulting from his donation would be primarily raised by Respondent and Ms. K. However, he testified that it was his understanding that he would also be a part of the child's life. Mr. F. failed to elaborate any further and offered no supportive proof.
Petitioner Mr. F. testified that he stopped seeing or speaking with Respondent in Spring, 2016.
Mr. F. testified he became aware of Respondent's pregnancy around October, 2016. He testified that he was told it was not his biological child, but failed to explain the source of that information. Mr. F. made no efforts at that time to ascertain paternity or engage in prenatal care.
O was born December, 2016. Petitioner Mr. F. was not present at the birth. Mr. F. testified that he was unaware of O's birth. Mr. F. did not attempt to ascertain the due date or ask to be notified when Respondent was in labor.
Following O's birth, Petitioner Mr. F. admitted that he initially made no efforts to obtain a genetic marker test or establish paternity because he had lost touch with Mr. P. and did not believe the child was his. In July, 2018, when O was approximately 19 months old, Petitioner received a text that he thought, at the time, was from Respondent, although it turned out to be from someone else. The text indicated the child might be his. A month later, in August, 2018 he consulted with an attorney about bringing a Paternity action and soon thereafter filed his first Petition with Family Court. However, Mr. F. was unable to locate Respondent to have him served and ultimately withdrew the Petition for that reason. In April, 2019 he located Respondent and filed the instant Petition.
Respondent Mr. P. testified he was unaware of any prior attempts made by Petitioner to establish paternity, but admitted that he moved three times in the last three years. Respondent is keeping his address and O's school confidential from Petitioner at the present time.
Petitioner Mr. F. has never been involved in O's life. He was not present at prenatal appointments or at O's birth, has never met O, has provided no financial support, or gifts for birthdays or holidays, including after he located Respondent.
Petitioner Mr. F. acknowledged that he will have to provide financial support if a filiation order is entered.
Respondent Mr. P. and his fiancé Ms. K. solely support O. Respondent is employed in the hospital police department of the Erie County Medical Center; Ms. K. also works and contributes her wages to the family's expenses.
O calls Respondent "daddy" and his fiancé, Ms. K. "Mommy". He does not use those names for any other persons. They live together as a family along with Respondent's other two children whom O considers his siblings.
Respondent Mr. P.'s position is that O's stable family unit lifestyle would be disrupted by the designation of a third, outside parent, that O already has a father in himself and does not need a second father, and that his fatherly relationship with O would be jeopardized by the designation of a second father.
Petitioner Mr. F. testified it is in O's best interests to get Genetic Marker testing and, if he is determined to be the biological father, for an Order of Filiation to be entered. He does not allege that Respondent and Ms. K. are not good parents, but Petitioner believes that O needs him in his life. Petitioner Mr. F. testified he offers a stable environment for O and would help support O developmentally and financially. If designated O's father, Petitioner testified he would be a role model for O, help him with homework, play catch with him, and take him to sporting events. Mr. F. testified that he should be designated O's father because "a boy needs a man in his life to teach him how to be a man and that man should be the boy's father"; that "a boy needs a man to teach him how to get dates"; and that "a boy needs a man to teach him how to be a man in society". While making these statements, Mr. F.'s demeanor expressed disdain for Respondent Mr. P. and implied that Respondent was incapable of performing this role for O.
The Attorney for the Child supports Respondent's Motion to Dismiss on the basis of Equitable Estoppel.
An in-camera Lincoln Hearing was held with O, who had just celebrated his third birthday. O was enthusiastic and adorable. He has a clear sense of his family and his relationships with its members, including that he clearly identifies Respondent Mr. P. as his father.
When paternity is contested, Family Court Act § 418 and § 532 provide the court with authority to order the mother, the child and the alleged father to submit to one or more genetic marker (DNA) tests. No such test shall be ordered however upon a written finding by the court that it is not in the best interests of the child on the basis of equitable estoppel, res judicata or the presumption of legitimacy of a child born into a marriage.
The purpose of equitable estoppel is to preclude a person from asserting a right when he or she has led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. Where a child justifiably relies on the representations that a specific man...
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