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Determination of Paternity Not in Child’s Best Interest; Mother Equitably Estopped from Seeking Paternity Determination

The Second Department determined a genetic marker test to determine appellant’s paternity was not in the best interest of the child and the mother was equitably estopped form asserting appellant’s paternity.  The appellant had not been part of the 16-year-old child’s life since the child was 18 months old and the mother had failed to appear in a paternity proceeding instituted when the child was 8 months old:

…[I]in appropriate circumstances, the doctrine of equitable estoppel may be asserted defensively by a purported biological father to prevent a child’s mother from asserting biological paternity where a genetic marker test would not be in the best interests of the child … . Here, the Family Court improvidently rejected the appellant’s equitable defense. An adverse inference may be taken against the mother for her failure to appear for the court-ordered genetic marker test in 1999, and her failure to pursue that proceeding … . Thereafter, the mother failed to commence a new proceeding for 13 years, during which time the subject child had no relationship with the appellant and lived with the mother, her current husband, and his half-siblings on the mother’s side. Accordingly, a genetic marker test is not in the best interests of the subject child, on the ground that the mother is equitably estopped from asserting the appellant’s biological paternity (see Family Ct Act § 532[a]…). Matter of Karen G v Thomas G, 2013 NY Slip Op 05901, 2nd Dept 9-18-13

 

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