Ettore I v. Angela D
| Decision Date | 16 August 1985 |
| Citation | 129 Misc.2d 301,492 N.Y.S.2d 1013 |
| Parties | In the Matter of the Paternity Petition of ETTORE I * Petitioner, v. ANGELA D * and Robert D * Respondents. |
| Court | New York Family Court |
Two men claim to be the father of the subject child, a three-year-old girl. The petitioner in this paternity proceeding alleges that the child was conceived during his adulterous affair with the child's mother. The mother's husband, married to and cohabiting with the mother prior to conception and for some two and one-half years thereafter, contends that he is the child's father.
Initially this petition named only the child's mother as respondent. However, the Court ordered service on the mother's husband and designated him as a necessary party. CPLR § 1001(a). See also, Matter of Betzaida v. Lazaro F., 99 Misc.2d 408, 416 N.Y.S.2d 190. A law guardian was appointed for the child. See Michaella M.M. v. Abdel Monem El G., 98 A.D.2d 464, 470 N.Y.S.2d 659; Matter of Betzaida v. Lazaro F., supra.
Preliminarily, the Court considered the issue of its jurisdiction over this matter and found that jurisdiction lies in Family Court. In Matter of Salvatore S. v. Anthony S., 58 A.D.2d 867, 396 N.Y.S.2d 872 (2d Dept.), the Appellate Division held that where a child's status is at issue, rather than merely a request for support, the matter is in the nature of a declaratory judgment action and, therefore, properly brought in Supreme Court. However, the rationale of this case seems to have been rejected by the Court of Appeals. In Matter of Sharon G.G. v. Duane H.H. and Michael G.G., 95 A.D.2d 466, 467, 467 N.Y.S.2d 941 (3d Dept.), the Appellate Division expressly rejected the contention that a proceeding to determine a child's status should be brought in Supreme Court as a declaratory judgment instead of Family Court as a paternity proceeding. The Appellate Division Order was affirmed by the Court of Appeals "for the reasons stated in the opinion by Justice Howard A. Levine (95 A.D.2d 466 )." Matter of Sharon G.G. v. Duane H.H. and Michael G.G., 63 N.Y.2d 859, 482 N.Y.S.2d 270, 472 N.E.2d 46 (1984). See also, Matter of Cathleen P. v. Gary P., 63 N.Y.2d 805, 481 N.Y.S.2d 332, 471 N.E.2d 145.
Next, the Court considered respondent-husband's claim that a third-party, stranger to the marriage, lacks standing to bring a paternity petition involving a child born during the course of a marriage. The Court found this argument unpersuasive. FCA § 522 specifies who may originate paternity proceedings. Included therein is "a person alleged to be the father." No exception is made for those cases where the mother is married. Under accepted tenets of statutory construction, the Court must conclude that if such an exception had been intended by the Legislature, it would have been included in the statute. McKinney's Consolidated Laws, Vol. 1, Statutes, § 74.
A full plenary hearing was held on April 26 and May 28, 1985. The Court has received pre-trial and post-trial briefs from counsel. After careful consideration of all papers and proceedings had herein, the Court reaches the following findings of fact and conclusions of law.
Respondents, husband and wife, married in 1977. They separated for one and a half weeks in July of 1979, but then resumed cohabitation. The respondent-mother gave birth to her first child, Erin, on August 24, 1981, and her second child, Michael, on September 3, 1983. She and her husband separated in early 1984; she retains custody of the children, while her husband exercises visitation rights and pays child support pursuant to a separation agreement. Petitioner filed this petition on June 1, 1984, seeking to be declared the father of the child, Erin, to have visitation with her, and to contribute to her support. The respondents, though currently still separated, are joined in opposition to the petition. At the hearing, respondent-mother admitted having sexual intercourse with petitioner on various occasions from September, 1980 through the first week of December, 1980, in Manhattan, Brooklyn and Staten Island. She further conceded that no birth control (condom) was used on one occasion, the date of which she did not specify. Respondent-husband had no knowledge of these events or petitioner's existence.
At the conclusion of the plenary hearing, the Law Guardian opposed the petition on the basis of equitable estoppel. Respondents rely on the estoppel defense alternatively, also contending that even if not estopped, petitioner has not proven his paternity.
Though application of estoppel is a form of equity, and Family Court is not a court of equity (Lydon v. Lydon, 110 Misc.2d 966, 443 N.Y.S.2d 198), the Court of Appeals approved the application of estoppel to a Family Court paternity proceeding in Matter of Sharon G.G. v. Duane H.H. and Michael G.G., supra. The Appellate Division had found that a married mother bringing a paternity petition against a third-party "boyfriend," properly within Family Court jurisdiction, was estopped for having, inter alia, held the child out as the child of her husband and permitting a strong parent-child bond to form. The Court of Appeals affirmed the Appellate Division on the opinion below.
In Hill v. Hill, 20 A.D.2d 923, 249 N.Y.S.2d 751, the Court affirmed an estoppel against the mother. She was estopped from claiming her husband was not the child's father where she and her husband had cohabited prior to the child's conception and for six years after the child's birth. This was a divorce action wherein the mother sought to win custody by alleging that her husband was not the father. The Appellate Division (2d Dept.) held:
"Common sense, public policy, reason and the overriding consideration for the welfare of the child will bar a wife from bastardizing her child where, as here, she lived with her husband as his wife during the period of conception and birth of the child and for six years thereafter--all the while concealing from him the adultery to which she now confesses for the sole purpose of securing the child's custody." (p. 924, 249 N.Y.S.2d 751).
A Family Court custody award to the mother was reversed in Boyles v. Boyles, 95 A.D.2d 95, 466 N.Y.S.2d 762, even though a blood grouping test excluded her husband as the child's father. Based on the blood test, the Family Court had given custody to the mother as opposed to a non-biological parent, i.e., the husband. The Appellate Division held that because the case presented "extra-ordinary circumstances," pursuant to Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, the best interest of the child must be considered in reaching the custody determination. The mother had affirmatively held her husband out as the child's father for almost four years. She had "created the opportunity for and effectively encouraged the development of a father-son relationship." Boyles v. Boyles, supra, 95 A.D.2d at 98, 466 N.Y.S.2d 762. The Court found an estoppel against the mother denying her husband's paternity but remitted the matter to Family Court for inquiry into the child's best interest.
Equitable estoppel has likewise been applied against a husband who, after a prolonged acquiescence in his legally presumed paternity, denies paternity. In Montelone v. Antia, 60 A.D.2d 603, 400 N.Y.S.2d 129, the respondent in a Family Court support proceeding denied paternity for the first time, some fifteen years after he had obtained the parties' divorce. The Family Court granted his request for a Blood Grouping Test but was reversed by the Appellate Division on the grounds of equitable estoppel. The Court said, "blood tests should be directed only where the issue of paternity has never been conceded, expressly or implicitly, or actually litigated." Id., at 603, 400 N.Y.S.2d 129.
Clearly, in the case at bar, either the mother or her husband could be estopped, pursuant to case law, from disavowing the husband's paternity of Erin, because they have previously held the husband out as the child's father. But estoppel is urged herein against a person claiming rather than denying paternity. Whether the estoppel case law, as discussed above, may be analogized to the facts of the case at bar is apparently a matter of first impression.
The case law differs from the case at bar in a significant way. Estoppel in the case law has been utilized to preclude one who has previously held himself (or her husband) out as a child's father from later denying paternity, for one's own advantage and at the expense of the child. Because of the effects of their previous actions, these people were subsequently precluded from retracting their assertions of paternity. The courts have apparently not applied estoppel to a man claiming paternity of a child. Estoppel has only been applied to prevent one from denying paternity after previously claiming it or acquiescing in it.
When asked during the hearing why he did not come forward sooner, petitioner stated that he did not want to interfere with the intact family unit. He also credibly testified that for over two years he believed the child's mother would leave her husband to be with him. He knew of her second pregnancy by her husband, and he essentially was leaving the timing of the separation up to her. After petitioner learned of her separation, he proposed marriage to the respondent-mother and bought an engagement ring for her. When she refused to marry him, he filed this paternity petition. The Court finds that on these facts an estoppel should not be employed to prevent petitioner from asserting his claim of paternity.
It should be noted that even if an estoppel were found, unlike other cases, where the welfare of a child...
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McDaniels v. Carlson
... ... See Ettore I. v. Angela D., 129 Misc.2d 301, 305, 492 N.Y.S.2d 1013 (Fam.Ct.1985); See also In re Marriage of Studebaker, 36 Wash.App. 815, 818, 677 P.2d 789 ... ...
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