Opinion
2013-01-22
In re CECIL R., Petitioner–Appellant, v. RACHEL A., Respondent–Respondent.
Michael S. Bromberg, Sag Harbor, for appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for the child.
Michael S. Bromberg, Sag Harbor, for appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for the child.
FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, ROMÁN, CLARK, JJ.
Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about July 26, 2011, which, after a hearing, denied petitioner's motion to vacate an order dismissing his paternity petition on default, unanimously affirmed, without costs.
While petitioner demonstrated a reasonable excuse for his default in appearing, he failed to show a meritorious claim of paternity ( see Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137, 141–142, 463 N.Y.S.2d 761, 450 N.E.2d 681 [1983];Matter of Jason E. v. Tania G., 69 A.D.3d 518, 519, 893 N.Y.S.2d 542 [1st Dept.2010] ). The court improperly relied on a purported DNA test that was not in the record, but its determination is otherwise supported by the record. Petitioner testified that, although he knew of the child's birth within the year after she was born, he did not believe he was the father because of the mother's lifestyle. This testimony tends to undermine petitioner's claim, which he was required to prove by clear and convincing evidence ( see Jane PP. v. Paul QQ., 65 N.Y.2d 994, 996, 494 N.Y.S.2d 93, 484 N.E.2d 122 [1985] [“Where there is proof in the record that a man other than the respondent has had intercourse with the petitioner during the critical time period, the evidence is insufficient as a matter of law”] ).
The record also supports the application of the doctrine of equitable estoppel to preclude petitioner from pursuing his paternity claim ( see Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326–327, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006] ). Petitioner waited almost four years after the child's birth before commencing the paternity proceeding, during which time he failed to communicate with her or provide any financial support. The child, who had been removed from her mother's care at the age of five months, lived with Jason A. and his extended family and an order of filiation was issued in 2007 declaring Jason A. her father. We agree with the court that it is not in the child's best interests to interfere with her relationship with the only father she has ever known ( see e.g. Matter of David G. v. Maribel G., 93 A.D.3d 526, 940 N.Y.S.2d 590 [1st Dept.2012];Matter of Fidel A. v. Sharon N., 71 A.D.3d 437, 894 N.Y.S.2d 753 [1st Dept.2010];Matter of Enrique G. v. Lisbet E., 2 A.D.3d 288, 769 N.Y.S.2d 533 [1st Dept.2003] ).
We have considered petitioner's remaining contentions and find them unavailing.