The Fourth Department, reversing Family Court and ordering further proceedings before a different judge, reiterated that a court should consider paternity by estoppel before ordering a test for biological parternity. Here, Gerald, the acknowledged father of the child and the custodial parent of the child, was not a named party in the proceedings (a paternity petition brought by the mother naming another party, Shane, as the father). Shane appeared and stated he wanted nothing to do with child. Yet the court ordered a paternity test without making Gerald a party and without notifying him:
“Family Court should consider paternity by estoppel before it decides whether to test for biological paternity” … . That did not occur here because Gerald was not a named party in the paternity proceeding and did not otherwise appear when the court ordered Shane to submit to a genetic marker test, so he did not have the opportunity to raise the doctrine of estoppel. The court should have joined Gerald in that proceeding or otherwise notified him before it ordered the test … . After all, Gerald was not only the acknowledged father of the child, but was the custodial parent of the child, and the court was well aware of those facts inasmuch as it had issued the custody orders. The court made it clear in its decision, however, that even if Gerald had made a timely objection and raised the defense earlier, the court nevertheless would have ordered the test because the child was young and “the truth is important.” That is contrary to both the plain language of the statute and statements of law by the Court of Appeals. Matter of Jennifer L. v Gerald S., 2016 NY Slip Op 08730, 4th Dept 12-23-16
FAMILY LAW (FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY)/PATERNITY (FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY)