Opinion
P-XXXXX-16
02-15-2017
M.H., Petitioner, v. S.S., Respondent.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST.
Petitioner M. H. has filed a petition against S.S., the mother of S.H.S. requesting an order vacating his acknowledgement of paternity. Ms. S. has filed a motion to dismiss Mr. H.'s petition. Ms. S.'s motion also seeks attorney's fees against Mr. H. for bringing this motion. For the reasons discussed below, the motion to dismiss the instant petition is granted; the motion for attorney's fees is not granted at this time.
BACKGROUND
The child, S. H.S. was born on October 23, 2012. An acknowledgment of paternity was signed by Mr. H. the next day, on October 24, 2012. According to Ms. S.'s affidavit in support of her motion to dismiss, she and Mr. H. lived together with the child until June of 2013 when she left the home.
Ms. S. filed for custody of the child in June 2013 and a final order was issued on her custody petition on October 3, 2014, which granted Ms. S. sole legal and physical custody of the child and granted Mr. H. specified visitation with the child. According to Ms. S.'s affidavit, Mr. H. exercised his visitation with the child for at least a year and a half, although not consistently. Mr. H.'s affidavit in opposition to Ms. S.'s motion to dismiss does not dispute that he and Ms. S. lived together with the child until June 2013 or that he exercised visitation with the child until the filing of his petition to vacate his acknowledgment of paternity in June 2016. In April 2016, Mr. H. filed a petition to enforce his visitation with the child. In that petition, he alleged that he was the father of the child. That petition was dismissed for failure to prosecute on September 13, 2016. In a petition dated May 2, 2016, Ms. S. sought an order to modify the visitation schedule. On the same day, she filed a petition against Mr. H. for child support. One month later, Mr. H. filed the instant petition to vacate his acknowledgement of paternity.
PETITION TO VACATE
Mr. H.'s petition to vacate his acknowledgement of paternity states the following:
Sixty days have elapsed since the execution of the acknowledgement of paternity and that fraud, duress or material mistake of fact has occurred in that although the Petitioner and the Respondent signed the existing Acknowledgment of Paternity, the Petitioner now has doubts that he is the biological father of the subject child [S.H.S.].
The acknowledgment of paternity should be rescinded because the Petitioner, [M.H.] is NOT the legal, biological father of the subject child [S.H.S.].
In his affidavit in response to Ms. S.'s motion to dismiss his petition, Mr. H. added the following information: Upon information and belief, I am not the father of [S.H.]. The petitioner is from Italy, although she claimed that we had a five year relationship but the reality is that she was traveling continuously to Europe. While on a trip home to Italy, she called to tell me that she was pregnant.
At first, I thought [S.] was my child, which is why I signed the acknowledgment of Paternity. Thereafter, I found out that she was seeing someone else and with the multiple visits to Europe, I became suspicious. I even spoke to a boyfriend on the telephone. (Affidavit of M.H. dated February 3, 2017.)
Mr. H. further alleges that his relationship with the child is sporadic and that therefore the child would not "be affected in any way if the test result is negative. In fact, I believe it is better that I know whether I am the father. I will feel at ease." Mr. H. then takes issue with Ms. S.'s reference in her affidavit to an earlier temporary order of protection that she obtained against him, noting that the temporary order has expired and that the case did not go forward. He also contested her assertion that he had problems with alcohol. Other than that, however, Mr. H. does not contest any of the other factual assertions in Ms. S.'s affidavit in support of her motion to dismiss.
The attorney for the child did not submit papers in response to Ms. S.'s motion to dismiss, but stated on the record that, based on the history of this case, she was supporting the motion to dismiss the petition to vacate the acknowledgment of paternity. --------
DISCUSSION
Pursuant to Family Court Act § 516-a, a party seeking to vacate an acknowledgment of paternity after sixty days may only do so by alleging and proving "fraud, duress, or material mistake of fact." F.C.A. §516-a (b)(ii). The determination of whether the acknowledgment of paternity was due to fraud, duress, or material mistake of fact must be made before ordering a genetic marker test or a DNA test. Westchester County Dept. of Social Services o/b/o Melissa B. v. Robert W.R., 25 AD3d 62, 70 (2d Dept. 2005). In the instant case, Mr. H.'s petition and his affidavit in response to the motion to dismiss do not establish sufficient allegations of fraud, duress, or material mistake of fact so as to warrant a hearing. Matter of Fulmer v. Buxenbaum, 90 AD3d 755, 756 (2d Dept. 2011) (affirming family court's denial of application to vacate order of filiation because the petitioner "failed to make a prima facie showing of fraud, misrepresentation or other misconduct").
Mr. H. does not allege that Ms. S. perpetrated a fraud upon him or materially misrepresented facts to him when he signed the acknowledgment of paternity. He alleges only that he has "doubts" as to the child's paternity and that he would feel more "at ease" if a genetic test was done. Mr. H. alleges that after the child was born, he found out that Ms. S. was seeing someone else and that he himself spoke with a "boyfriend" on the telephone. Other than stating that he found out that Ms. S. was seeing someone else after the child was born, Mr. H. provides no information indicating that this other person could have been the father of the child. Mr. H. does not specify when Ms. S. was seeing someone else or when he learned this.
Moreover, the timing of Mr. H.'s petition tends to undermine the validity of his allegations. The child is now over four years old and the father's "doubts" as to his paternity only arose a month after the child's mother filed for child support. Prior to the filing of the child support petition, Mr. H. not only signed an acknowledgment of paternity, he also invoked the aid of the court to assert his parental rights when he filed a petition to enforce his visitation schedule with the child. He does not assert that he learned that someone one else is the father of the child or even that he learned that Ms. S. had intercourse with another man at the time the child was conceived, only that he has some intangible "doubts." In the absence of any specific allegations supporting Mr. H.'s "doubts" that he is the father, his petition is not sufficient to vacate an acknowledgment of paternity. See Matter of Jonathan C. v. Iaishia Q.T., 131 AD3d 1054 (2d Dept. 2015) (reversing family court's denial of motion to vacate an order of filiation where petitioner alleged that the mother misrepresented that he was the child's father, his allegations were substantiated by results of a private DNA test which revealed he was not the father, and the mother did not oppose his motion); Santos Ernesto R. v. Maria S.C., 66 AD3d 910 (2d Dept. 2009) (reversing family court's denial of motion to vacate paternity without a hearing where movant alleged that he had believed that he was the biological father when he signed the acknowledgment of paternity but subsequently learned that his belief was mistaken and where the child's mother, the attorney for the child, and another man who was petitioning for paternity of the child all supported the motion).
None of the allegations in Mr. H.'s petition nor his statements in his affidavit in opposition to the motion to dismiss establish fraud, duress, or material mistake of fact. He has thus failed to make a prima facie showing sufficient to warrant a hearing and his petition must be dismissed. See Demetrius H. v. Mikhaila C.M., 35 AD3d 1215 (4th Dept. 2006) (affirming family court's dismissal of petition to vacate acknowledgment of paternity more than five years after its signing where petition did not make a prima facie showing of fraud, duress, or material mistake of fact where petitioner's affidavit established that he did not "justifiably rely on respondent's purportedly fraudulent statements when he signed the acknowledgment"). Mr. H.'s petition to vacate his acknowledgment of paternity is therefore dismissed.
With respect to the application for attorney's fees, Ms. S. has not established in her motion that Mr. H. engaged in frivolous conduct in bringing his petition. Although he has failed to make out prima facie allegations establishing a basis for vacating his acknowledgment of paternity, it may be that Mr. H. does in fact have doubts as to his paternity and did not file the petition primarily to delay or prolong the child support proceeding. As Ms. S.'s motion did not establish that Mr. H.'s petition was frivolous, awarding attorneys' fees at this point would not be appropriate. 22 N.Y.C.R.R. 130-1.1; see Miller v. Miller, 96 AD3d 943 (2d Dept. 2012) (". . . regardless of whether the two additional petitions filed by the mother were likely to be successful, they were not so completely without merit in law as to be frivolous, and the father failed to demonstrate that they were filed to delay the proceedings, or to harass or maliciously injure him"). Ms. S.'s motion for attorney's fees is denied at this point without prejudice to reapply if later circumstances warrant it.
Notify parties and counsel. Dated: February 15, 2017 Honorable Judith Waksberg Judge, Family Court