Commissioner of Social Services Ex Rel. Michelle W. v. Dwayne W.

Appellate Division of the Supreme Court of New York

Commissioner of Social Services Ex Rel. Michelle W. v. Dwayne W.

2017 NY Slip Op 595, 146 A.D.3d 718, 47 N.Y.S.3d 5

Appellate Division of the Supreme Court of the State of New York·Decided January 31, 2017·No. 2925·Published·Cited by 1 cases

Opinion

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about August 21, 2015, which adjudged and declared that respondent is the father of the subject child, unanimously affirmed, without costs.

Family Court properly determined that it is in the child’s best interest to equitably estop respondent from having a DNA test to establish paternity (see Family Ct Act § 532 [a]). Clear and convincing evidence demonstrates that respondent held himself out as the father of the child and that the now 10-year-old child considers respondent to be his father (Matter of Shondel J. v Mark D., 7 NY3d 320, 326-327 [2006]; Matter of Kerry Ann P. v Dane S., 121 AD3d 470, 471 [1st Dept 2014]). The child lived with respondent, his mother and siblings for about two years, calls respondent “dad” and spends time with him on birthdays and holidays, including Father’s Day. Respondent introduced the child to his family and friends as his son, *719 and allowed the child to spend time and develop relationships with his family. Issues of credibility were for Family Court to resolve and its determination to credit the testimony of the mother and the child and to reject that of respondent is supported by the record (see Matter of Kerry Ann R, 121 AD3d at 471).

Concur — Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber and Gesmer, JJ.

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Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about August 21, 2015, which adjudged and declared that respondent is the father of the subject child, unanimously affirmed, without costs.

Family Court properly determined that it is in the child’s best interest to equitably estop respondent from having a DNA test to establish paternity (see Family Ct Act § 532 [a]). Clear and convincing evidence demonstrates that respondent held himself out as the father of the child and that the now 10-year-old child considers respondent to be his father (Matter of Shondel J. v Mark D., 7 NY3d 320, 326-327 [2006]; Matter of Kerry Ann P. v Dane S., 121 AD3d 470, 471 [1st Dept 2014]). The child lived with respondent, his mother and siblings for about two years, calls respondent “dad” and spends time with him on birthdays and holidays, including Father’s Day. Respondent introduced the child to his family and friends as his son, *719 and allowed the child to spend time and develop relationships with his family. Issues of credibility were for Family Court to resolve and its determination to credit the testimony of the mother and the child and to reject that of respondent is supported by the record (see Matter of Kerry Ann R, 121 AD3d at 471).

Concur — Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber and Gesmer, JJ.

Commissioner of Social Services Ex Rel. Michelle W. v. Dwayne W., 2017 NY Slip Op 595, 146 A.D.3d 718, 47 N.Y.S.3d 5 (N.Y. Ct. App. 2017).

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Opinion

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