Should Estoppel Issues Be Determined Before Ordering Genetic Marker Tests In Paternity Issues ?
In Matter of Ronald FF. v. Cindy GG., 70 NY2d 141 the father had a four-year relationship with the mother.
He attended the mother's childbirth courses, was present at the birth of the child and was listed on the birth certificate as the child's father.
After the parties separated, the mother initiated support proceedings against the "father."
It was not until the mother planned to move to Texas that the issue of paternity was raised in a Family Court proceeding brought by the "father" to prevent the move.
It is not clear why the issue of estoppel was not raised and determined before blood grouping tests were done.
The appellate courts have instructed us very clearly that estoppel issues must be determined prior to ordering genetic marker tests. (Mancinelli v. Mancinelli, 203 AD2d 634.)
The Court of Appeals in Ronald FF. is silent on the estoppel issue.
It is also hard to reconcile the Appellate Division's decision in Matter of Lorie F. v. Raymond F. (239 AD2d 659) with the Court of Appeals' decision in Ronald FF. the Court of Appeals held that the Bennett v. Jeffreys standard should not be extended to grant visitation rights to a nonparent, while the Appellate Division, Third Department, in Lorie F. used an estoppel argument to permit such visitation.
Both involved cases where a "father" had stepped up to the plate to be an active parent in the child's life. Also hard to reconcile with Lorie F. is the Third Department's decision in Matter of Cindy P. v. Danny P. (206 AD2d 615).
In Matter of Cindy P. v. Danny P. (206 AD2d 615) the Court denied standing to a stepparent, on the authority of Ronald FF., even though a stipulation on visitation was incorporated into a Family Court order.
The Court also cited to Matter of Canabush v. Wancewicz (193 AD2d 260) for the proposition that, as a matter of public policy, one may not stipulate away a child's right to be reared by its biological parent.
The Cindy P. Court makes no mention of the estoppel issue.
For a thorough and thoughtful discussion of the application of equitable estoppel to custody disputes see Judge Amodeo's decision in Matter of Christopher S. v. Ann Marie S. (173 Misc 2d 824) and Judge Cooney's decision in Matter of J. C. v. C. T. (184 Misc 2d 935 ).
See also Jean Maby H. v. Joseph H. (246 AD2d 282) for the proposition that Ronald FF. and Matter of Alison D. v. Virginia M. (77 NY2d 651) cannot be blindly applied and that the Court of Appeals has put renewed and greater emphasis on best interest determinations in this whole area, as evidenced by the Matter of Tropea v. Tropea relocation case (87 NY2d 727).