Darcie T. v. Robert M. L.

255 A.D.2d 955, 680 N.Y.S.2d 782, 1998 N.Y. App. Div. LEXIS 12207

Opinion

—Order unanimously affirmed without costs. Memorandum: Family Court properly granted petitioner’s motion to vacate an order of filiation entered based upon respondent’s admission of paternity with respect to petitioner’s daughter. The parties were never married and are no longer seeing each other, and respondent has been excluded as the father of the child by HLA blood tests. The court properly refused to determine that petitioner is equitably estopped from challenging the prior order. Where an order of filiation is challenged, “it is the child’s best interests which are of paramount concern” (Matter of Louise P. v Thomas R., 223 AD2d 592, 593; see also, Matter of Matthew T. S. v Angela W., 242 AD2d 969). The record supports the court’s findings that respondent had not established a strong relationship with the child and that respondent had been absent from the child’s life for long intervals while respondent was on the road with a band, incarcerated, or in a drug rehabilitation program. Given that the child was only three years old at the time of the hearing, the court did not abuse its discretion in failing sua sponte to appoint a Law Guardian for the child (see, Lee v Halayko, 187 AD2d 1001, 1002). Finally, nothing in this record warrants a departure from the prohibition against annulling child support arrears that accrued before petitioner’s motion (see, Matter of Commissioner of Social Servs. [Barbara A.] v Gregory B., 229 AD2d 801, 802; cf., Matter of Reynolds v Oster, 192 AD2d 794, 795). (Appeal from Order of Livingston County Family Court, Cicoria, J. — Vacate Order.) Present— Green, J. P., Wisner, Pigott, Jr., Balio and Fallon, JJ.