In the Matter of Ruby M.M., v. Moses K., 2004-03255.
| Decision Date | 02 May 2005 |
| Docket Number | 2004-03255. |
| Citation | 18 A.D.3d 471,2005 NY Slip Op 03675,795 N.Y.S.2d 73 |
| Parties | In the Matter of RUBY M.M., Appellant, v. MOSES K., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order dated March 4, 2004, is reversed, on the law, the facts, and as a matter of discretion, without costs or disbursements, the motion is granted, the order dated March 10, 2003, is vacated, the petition is granted, and the matter is remitted to the Family Court, Kings County, for the entry of orders of filiation and a determination with respect to child support.
The instant proceeding was commenced in May 1998 to adjudicate the respondent the father of the subject children and for child support. Human leukocyte antigen blood tissue testing indicated a probability of paternity with respect to both children of in excess of 99.9%.
At a hearing on the petition, the respondent asserted the defense of equitable estoppel. The Family Court noted that the respondent testified first on the ground that he bore the burden of going forward with respect to that defense (see Matter of Delcore v Mansi, 262 AD2d 559, 560 [1999]).
The respondent admitted he had sexual intercourse with the petitioner for a three-year period and she became pregnant during the course of the relationship. He acknowledged that the relationship occurred in the late 1970's or early 1980's. The subject children were born on December 3, 1981, and July 22, 1984, respectively. Although the respondent was aware that the petitioner was married, he testified that he had never seen her husband.
The petitioner, who now resides in Virginia, receives public assistance, and suffers from health problems, testified telephonically pursuant to Family Court Act § 580-316 (f) that the respondent had a relationship with the children and referred to him as "Daddy." The respondent denied that this was the case. However, the issue here was not whether the respondent had a relationship with the children but whether...
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...is in fact the father would disturb any relationship the child[ ] may have had with any other father figure" (Matter of Ruby M.M. v. Moses K., 18 A.D.3d 471, 472, 795 N.Y.S.2d 73 ; see Matter of Marilene S. v. David H., 85 A.D.3d at 1036, 925 N.Y.S.2d 871 ; see also Matter of Commissioner o......
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