Kim Marie V. v. Michael S., 1
| Decision Date | 16 July 1993 |
| Docket Number | No. 1,1 |
| Parties | Matter of KIM MARIE V., Appellant, v. MICHAEL S., Respondent. Appeal |
| Court | New York Supreme Court — Appellate Division |
Jon Louis Wilson by Deborah Walker-DeWitt, Lockport, for appellant.
Linda M. Di Pasquale, Buffalo, for respondent.
Before CALLAHAN, J.P., and BALIO, DOERR, BOOMER and BOEHM, JJ.
Petitioner's child, now 5 1/2 years old, was conceived while petitioner was married. The child has lived with petitioner and petitioner's husband for most of her life and for all of her life the husband has been supporting her and has been known as her father. After recently commencing a divorce action, petitioner commenced this filiation proceeding in Family Court alleging that someone other than her husband was the father of the child. The person she alleges to be the father denies paternity, whereas her husband desires to continue his relationship as the child's father and he continues to support the child. Based upon those undisputed facts, Family Court properly denied, upon reconsideration, petitioner's application for a blood test and properly dismissed the petition.
"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 * * * years thereafter" (Hill v. Hill, 20 A.D.2d 923, 924, 249 N.Y.S.2d 751) and where the husband has supported and nurtured the child for all of the child's life. Estoppel is especially appropriate here, where petitioner waited almost six years to bring this filiation proceeding and where the husband desires a continuing relationship with the child and the alleged father, a stranger to the child, denies paternity (see, e.g., Matter of Ettore I. v. Angela D., 127 A.D.2d 6, 513 N.Y.S.2d 733; Matter of Boyles v. Boyles, 95 A.D.2d 95, 97-98, 466 N.Y.S.2d 762). "No purpose would be served by branding the child 'illegitimate' and depriving her of the only father she has ever known" (Vito L. v. Filomena L., 172 A.D.2d 648, 651, 568 N.Y.S.2d 449).
Order unanimously affirmed without costs.
To continue reading
Request your trial
-
Jean Maby H. v. Joseph H.
...the child's best interest" (Matter of Lorie F. v. Raymond F., supra, at 661, 657 N.Y.S.2d 235; see also, Matter of Kim Marie V. v. Michael S., 195 A.D.2d 985, 601 N.Y.S.2d 719 [in a divorce proceeding, the wife's petition to compel the husband to submit to a blood test was denied on the gro......
-
Kim Marie V. v. Gary D.V., 2
...A. Riehler, Buffalo, for respondent. Order unanimously affirmed without costs. Same Memorandum as in Matter of Kim Marie V. v. Michael S. (appeal No. 1) 195 A.D.2d 985, 601 N.Y.S.2d 719 (decided herewith). (Appeal from Order of Niagara County Family Court, Halpin, J.--Paternity.) CALLAHAN, ......
-
Cheryl B. v. Ronald B.
...properly concluded that defendant was not equitably estopped from contesting the child's paternity (cf., Matter of Kim Marie V. v. Michael S., 195 A.D.2d 985, 601 N.Y.S.2d 719). Order unanimously affirmed without ...