John J. v. Kayla I.

• Decision Date: 31 March 2016
• Citation: 28 N.Y.S.3d 485,137 A.D.3d 1500
• Parties: In the Matter of JOHN J., Respondent, v. KAYLA I. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1500
28 N.Y.S.3d 485

In the Matter of JOHN J., Respondent,
v.
KAYLA I. et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

March 31, 2016.

28 N.Y.S.3d 486

Kayla I., Malone, appellant pro se.

Alexander Lesyk, Norwood, for William I., appellant.

Adam R. Matteson, Lowville, attorney for the child.

Barry J. Jones, Hudson Falls, attorney for the child.

Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ.

ROSE, J.

Appeal from an order of the Family Court of St. Lawrence County (Richards, J.), entered December 5, 2014, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 5, to adjudicate petitioner as the father of a child born to respondent Kayla I.

Respondents Kayla I. (hereinafter the mother) and William I. (hereinafter the husband) are a married couple who were separated in 2011 when the mother engaged in a sexual relationship with petitioner. She became pregnant, reconciled with the husband and, in August 2012, gave birth to a child. Four days later, the child was placed in foster care and respondents were found to have derivatively neglected him. Within six weeks of the child's birth, petitioner commenced this paternity proceeding to establish that he is the child's biological father. The husband joined issue, seeking dismissal of the petition on equitable estoppel grounds. Based upon the parties' submissions, Family Court (Morris, J.) ordered genetic marker testing, which revealed a 99.99% likelihood that petitioner is the child's father.

Subsequently, upon recusal and reassignment of the proceeding, Family Court (Richards, J.) held a full hearing on the issue of equitable estoppel. At the conclusion of the hearing, the court rejected the husband's argument and declined to apply the doctrine. Immediately thereafter, a trial was held on the underlying petition, after which Family Court found that petitioner had established his paternity, and an order of filiation was entered declaring

28 N.Y.S.3d 487

him to be the father of the child. Respondents appeal, and we affirm.

Initially, we note that Family Court should have held the hearing on the issue of equitable estoppel before ordering genetic marker testing. "The fact that testing was conducted, however, does not bar the court from thereafter deciding the estoppel issue" (Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d 1, 6 n., 904 N.Y.S.2d 293, 930 N.E.2d 214 [2010] ; see Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 330, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006] ; Matter of Richard W. v. Roberta Y., 240 A.D.2d 812, 814, 658 N.Y.S.2d 506 [1997], lv. denied 90 N.Y.2d 809, 664 N.Y.S.2d 271, 686 N.E.2d 1366 [1997] ).

" ‘The doctrine of equitable estoppel is a defense in a paternity proceeding which, among other applications, precludes a man ... from asserting...