Ettore I. v. Angela D.

• Decision Date: 30 March 1987
• Citation: 127 A.D.2d 6,513 N.Y.S.2d 733
• Parties: In the Matter of ETTORE I. (Anonymous), Respondent, v. ANGELA D. (Anonymous), et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 733

513 N.Y.S.2d 733

127 A.D.2d 6

In the Matter of ETTORE I. (Anonymous), Respondent, v. ANGELA D. (Anonymous), et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

March 30, 1987.

Hal Ian Wolsky, Garden City, for appellant Angela D. (Anonymous), and Garamella & Rao, New York City (Sylvester Garamella, of counsel), for appellant Robert D. (Anonymous) (one brief filed).

Robert J. Gigante (Corash and Hollender, Staten Island, [Paul Hollender] of counsel), for respondent.

Lenore Gittis, New York City (Emily L. Kitay and Janet R. Fink, of counsel), Law Guardian on behalf of the child.

Before WEINSTEIN, J.P., and RUBIN, EIBER and SPATT, JJ.

EIBER, Justice.

We are asked in the context of this contested paternity proceeding to determine whether the doctrine of equitable estoppel may properly be invoked to prevent the petitioner from securing an order of filiation which would effectively divest a child of her status as the legitimate daughter of the appellants herein.

Erin D., the child whose parentage is at stake in this dispute, was born on August 24, 1981. On or about June 1, 1984, when Erin was approximately two years and nine months of age, the petitioner commenced the instant paternity proceeding contending that he was, in fact, Erin's biological father and that Erin had been conceived during the course of his adulterous affair with the child's mother, the appellant Angela D.

The appellant Robert D., the husband of the child's mother, steadfastly maintains that Erin is his child. The appellants jointly oppose this paternity proceeding, notwithstanding their legal separation in late 1984. The appellants also have another child, a son, who was born on September 3, 1983.

The paternity petition initially designated the mother, Angela D. as sole respondent. During the course of a preliminary hearing, which was conducted on July 3, 1984, and at which the appellant mother and the petitioner were present, the Family Court, upon consent of the parties, ordered that blood grouping tests, including the human leucocyte antigen blood tissue test (hereinafter HLA test) be performed on the petitioner, the mother, and the child. Although the appellant mother at that time, and at all times thereafter, denied the petitioner's assertion of paternity, both she and the child submitted to the blood tests. The petitioner likewise participated in the testing. The results of his HLA test, which were submitted to the court and later introduced into evidence, disclosed a plausibility of paternity score of 99.82%, which was characterized by the laboratory as paternity "practically proved". Thereafter, on August 27, 1984, the Family Court designated the appellant husband a necessary party to this proceeding and, accordingly, directed that he be duly served with all pertinent papers.

The husband's first appearance in this proceeding occurred on October 16, 1984, at which time he declined to voluntarily submit to an HLA test. The court at no time ordered him to do so.

On December 4, 1984, a Law Guardian was assigned to represent the interests of the infant Erin, who at this juncture in the proceedings was three years of age.

Although the issue of the availability of the doctrine of equitable estoppel as a defense to the petitioner's claim of paternity was first alluded to by the appellant husband, it was Erin's Law Guardian who actively pursued and effectively injected this issue into the proceeding. The essence of her argument was that the petitioner should be precluded from asserting any claim of paternity because he had allowed a protracted period of time to elapse before instituting this proceeding and, in the interim, had indirectly promoted or at the very least, acquiesced "in the establishment and growth of the parent-child bond" between Erin and the appellant husband. Moreover, although the petitioner alleged that he was first made aware of his status as Erin's biological parent shortly after she was conceived, the Law Guardian noted that he nevertheless permitted the appellant husband to assume and accept all of the "financial and emotional burdens of child rearing". Therefore, the Law Guardian urged that the court conduct a full hearing to determine whether the petitioner should be estopped from proving paternity by virtue of his delay in commencing this proceeding.

The Family Court (Leddy, J.), in a decision dated February 13, 1985, responded to the Law Guardian's contentions by ordering a fact-finding hearing with respect to the defense of estoppel. The court stated, in pertinent part:

"The burden shifts to the petitioner to show why there should not be an estoppel in the best interests of the child, once a requisite showing of operative facts has been made; furthermore, the desireability that the child know its true father is not, standing alone, sufficient to defeat an estoppel defense".

The relevant facts against which we decide this appeal were elicited at this fact-finding hearing.

The petitioner, who was 42 years of age at the time of the hearing, testified that he met the appellant mother in 1980, at her place of employment. Although Mrs. D. was married and was cohabiting with her husband, she and the petitioner nevertheless engaged in sexual relations. They remained intimate until December of 1980 which encompassed the time of probable conception. The petitioner claimed that on one occasion, the appellant mother informed him that she had conceived his child. The petitioner perceived this information to be true, in view of his belief that the marital relationship between appellants had been progressively deteriorating. At no time, however, did Mrs. D. indicate to the petitioner that she had abstained from engaging in sexual relations with her husband during the time of their affair.

So far as the evidence indicates, the petitioner conveyed his desire to be acknowledged as Erin's father; however, the appellant mother refused to allow him visitation. Instead of endeavoring to act upon his rights, the petitioner permitted the appellant husband to assume all parental responsibilities for the child. He attempted to justify his inaction by asserting that he did not wish to upset or otherwise disrupt the family unit. When asked whether he was concerned that the child was forming strong emotional bonds with appellant husband, the petitioner unhesitatingly declared: "there was nothing I could do about it".

It is also relevant to this case that the petitioner admitted that he had fortuitously encountered Erin on only two occasions since her birth: once when she was 15 months old, and again, when she was two-and-one-half years old. On neither of these occasions was there any contact between the petitioner and the child.

The petitioner never attempted to communicate with the appellant husband regarding Erin's paternal origins. Nor did he ever object to the fact that the appellant husband has assumed all parental responsibilities and was designated Erin's father on her birth certificate and when baptismal rites were administered. The petitioner neither paid for nor offered to pay for the medical or hospital expenses incurred in connection with the child's birth. Notwithstanding the foregoing, the petitioner, in an effort to substantiate his asserted concern for the child, referred in his hearing testimony to three checks which he had given to the appellant mother in the aggregate sum of $324.75. It was subsequently established, however, that of these three checks, only one, in the amount of $25, had been specifically designated for Erin.

At the time of the hearing, the petitioner, a divorced man, was obligated to pay $100 biweekly for the support of his two children. He testified that he had informed his mother, his attorney and his children that Erin was his daughter, despite the fact that there had not yet been any adjudication of paternity.

Immediately prior to the filing of the paternity petition, and after learning that the appellants had separated, the petitioner proposed marriage to Mrs. D. This proposal was, however, rejected. The petitioner explained that he finally decided to institute this proceeding because he wanted to "get to know [his] daughter [and] give her [the] opportunity to get to know [him]". It is significant, however, for purposes of this appeal, that the commencement of the paternity proceeding, from a temporal standpoint, coincided with the petitioner's having acquired information that the appellants had separated. Although the petitioner indicated that he did not believe that the appellants' marriage was intact during the first 15 months of Erin's life, and that he had expected Mrs. D. to leave her husband for two-and-one-half years prior to the hearing, he nevertheless refrained from pursuing any legal remedy at an earlier date because, as he alleged, "I didn't want to see any harm come to the child or the [appellant mother] in bringing it to the attention of the family that the child was mine". ¹

The relevant details of the appellants' case start with the mother's admission that she had engaged in a sexual relationship with the petitioner. She stated, however, that they had utilized a contraceptive device on each occasion of sexual intercourse, except once. Mrs. D. further disclosed that she had also cohabited with her husband at the time Erin was conceived. She believed her husband to be Erin's biological father because the appellants did not use any form of contraception during intercourse.

As an integral part of their case, the appellants stressed that although Mr. D. left the marital residence in January of 1984 he has always provided support for Erin and her brother and he continues to consistently remit support payments pursuant to the parties' separation agreement, which was executed in November of 1984. The appellant husband voluntarily paid for Erin's prekindergarten program and he has unequivocally expressed an intention to support the...