Richard W v. Roberta Y

• Decision Date: 05 June 1997
• Docket Number: No. 2,No. 1,1,2
• Citation: 658 N.Y.S.2d 506,240 A.D.2d 812
• Parties: In the Matter of RICHARD "W", 1 Respondent, v. ROBERTA "Y"1 et al., Appellants. (Proceeding) In the Matter of RICHARD "W", Appellant, v. ROBERTA "Y", Respondent. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 506

658 N.Y.S.2d 506

240 A.D.2d 812

In the Matter of RICHARD "W", ¹ Respondent, v. ROBERTA "Y"1 et al.,

Appellants. (Proceeding No. 1.)

In the Matter of RICHARD "W", Appellant, v. ROBERTA "Y", Respondent. (Proceeding No. 2.)

Supreme Court, Appellate Division,

Third Department.

June 5, 1997.

Arroyo, Copland & Flaherty (Shawn D. Flaherty, of counsel), Albany, for Roberta "Y" and another.

Richard "W", pro se.

Thomas Garner, Law Guardian, Cobleskill, for Lindsey "Y".

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Appeals (1) from an order of the Family Court of Albany County (Tobin, J.), entered April 17, 1996, which granted petitioner's application, in a proceeding (No. 1) pursuant to Family Court Act article 5, to adjudicate him the father of the child born to respondent Roberta "Y", and (2) from an order of said court, entered April 17, 1996, which, in a proceeding (No. 2) pursuant to Family Court Act article 6, transferred the matter to Saratoga County Family Court.

The child who is the subject of these proceedings was born to respondent Roberta "Y" (hereinafter respondent) in April 1993. Although respondent was unmarried when the child was conceived, she had married respondent William "Y", with whom she had been cohabiting for several years, in November 1992. William believed himself to be the child's father and acted in a manner consistent with that belief both before and after her birth. In August 1993, petitioner filed a petition seeking an adjudication that he is the child's father. On the basis of testimony establishing that respondent had engaged in unprotected intercourse with petitioner during the relevant time period, and the results of a blood test that revealed a 99.53% probability that petitioner was indeed the child's father, Family Court entered an order of filiation over respondent's opposition.

On appeal, we reversed and remitted the matter to Family Court, directing that William be joined as a necessary party so that all claims with respect to the child's paternity could be adjudicated and all of the relevant circumstances considered in a single proceeding (212 A.D.2d 89, 629 N.Y.S.2d 512). On remittal, Family Court joined William as a party respondent, appointed a Law Guardian to represent the child's interests and ordered that all parties submit to further scientific testing. Respondents sought to stay the order directing additional testing, arguing that the court should conduct a hearing to determine whether petitioner is equitably estopped from proving his paternity before ordering that William be tested. This request was denied, the tests were completed and a hearing was thereafter commenced, at which the test results--which excluded William as the father--were admitted into evidence.

At the close of the hearing, Family Court found that petitioner had successfully rebutted the presumption of legitimacy (see, e.g., Matter of Penny MM. v. Bruce MM., 118 A.D.2d 979, 500 N.Y.S.2d 199) and that respondents had failed to rebut the presumption of petitioner's paternity created by the blood test results (see, Family Ct Act § 532[a] ). The court then addressed and rejected respondents' equitable estoppel argument, concluding, inter alia, that although William had bonded with the child during the first four months of her life, their relationship "was not so established and functional a parent-child relationship as to warrant application of estoppel". An order of filiation was entered from which respondents appeal. ²

Preliminarily we note that, inasmuch as the resolution of the estoppel issue in respondents' favor would have rendered the results of William's blood test irrelevant (see, Matter of Commissioner of Social Servs. of Tompkins Co. [Barbara A.] v. Gregory B., 211 A.D.2d 956, 958, 621 N.Y.S.2d 727), Family Court should have addressed that issue prior to directing that he be tested (see, Matter of Leon L. v. Carole H., 210 A.D.2d 484, 484-485, 621 N.Y.S.2d 93; Mancinelli v. Mancinelli, 203 A.D.2d 634, 636, 610 N.Y.S.2d 104). The fact that testing was conducted did not, however, bar the court from thereafter deciding the estoppel issue (see, Mancinelli v. Mancinelli, supra, at 636, 610 N.Y.S.2d 104).

As to the merits of respondents' equitable estoppel defense--which was neither raised nor considered when this matter was previously before us--we find, given the totality of the evidence adduced at the hearing, that there should be a reversal. Though petitioner believed that he was the father as soon as he was informed of respondent's pregnancy in August 1992, he did not file a paternity petition until August 1993. Petitioner's silence and acquiescence for a full year (see, Matter of Ettore I. v. Angela D., 127 A.D.2d 6, 15, 513 N.Y.S.2d 733), in the face of William's open and obvious assumption of the role of father, led William to reasonably believe in his parental status, and to act in reliance on that conviction. To permit petitioner to take over the parental role at this juncture would be unjust and inequitable (see, Matter of James BB. v. Debora AA., 202...