The Second Department, over a dissent, determined petitioner met his burden of proof in establishing his acknowledgment of paternity (AOP) was signed by reason of mistake of fact and sent the matter back for a determination of paternity:
Here, the petitioner testified that he signed the AOP because, during the relevant time period, he and the respondent were having sexual relations and the respondent represented that he was the biological father. He also testified that it was only after he executed the AOP that he learned from coworkers that another man may be the child’s actual biological father, causing him to question his paternity. The petitioner’s testimony was sufficient pursuant to Family Court Act § 516-a(b)(ii) to establish a material mistake of fact … .
Further, in light of the Family Court’s finding that the petitioner did not meet his initial burden of proof, no hearing was held on the matter of the child’s best interests. However, since it is undisputed that the parties were never married to each other and did not live together at any time during the child’s life, the petitioner had only visited with the child approximately five or six times before visitation ceased altogether when the child was less than eight months old, and the respondent testified that the petitioner had no relationship with the child, it would not be appropriate to apply the doctrine of equitable estoppel to preclude the ordering of genetic marker or DNA tests for determination of the child’s paternity. Under these circumstances, there is no evidence that the child “would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward”… . Matter of Sidney W v Chanta J, 2013 NY Slip Op 08645, 2nd Dept 12-26-13