Kim F. v. Glenn W.

Appellate Division of the Supreme Court of New York

Kim F. v. Glenn W.

295 A.D.2d 995, 744 N.Y.S.2d 777, 2002 N.Y. App. Div. LEXIS 6289

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 14, 2002

StatusPublished

This text of 295 A.D.2d 995 (Kim F. v. Glenn W.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kim F. v. Glenn W., 295 A.D.2d 995, 744 N.Y.S.2d 777, 2002 N.Y. App. Div. LEXIS 6289 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from an order of Family Court, Orleans County (Punch, J.), entered November 5, 2001, which, inter alia, denied that part of respondent’s motion seeking to vacate the order of filiation.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Family Court properly denied that part of respondent’s motion seeking to vacate the order of filiation entered September 15, 1986 upon respondent’s admission of paternity with respect to a child born out of wedlock to petitioner in October 1986. An order of filiation “purporting to settle something as fundamentally important as the paternity of a child is not susceptible of vacatur upon anything but newly discovered evidence strongly indicative of a result different than the one previously reached” (Catherine A. v David B., 249 AD2d 964, 964, lv dismissed 92 NY2d 919 [internal quotation marks omitted]). Respondent failed to establish that there was newly discovered evidence that he is not the child’s father; indeed, he admitted at the hearing that his motion was based on allegations made to him more than 10 years earlier.

Although the court initially granted that part of the motion of respondent seeking genetic marker testing for himself, petitioner and the child, the court properly vacated that order upon the law guardian’s motion to deny that requested relief on the ground of equitable estoppel. Following a hearing and an in camera interview with the 14-year-old child, the court properly determined that it is not in the child’s best interests to order the genetic marker test (see Family Ct Act § 418 [a]; Hammack v Hammack, 291 AD2d 718, 719-720). “Given the delay of [nearly 14] years from the child’s birth to [respondent’s] application, it was incumbent upon [respondent] to proffer more than conjecture that the boy is not his child” (Catherine A., 249 AD2d at 965). Present—Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Burns, JJ.

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—Appeal from an order of Family Court, Orleans County (Punch, J.), entered November 5, 2001, which, inter alia, denied that part of respondent’s motion seeking to vacate the order of filiation.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Family Court properly denied that part of respondent’s motion seeking to vacate the order of filiation entered September 15, 1986 upon respondent’s admission of paternity with respect to a child born out of wedlock to petitioner in October 1986. An order of filiation “purporting to settle something as fundamentally important as the paternity of a child is not susceptible of vacatur upon anything but newly discovered evidence strongly indicative of a result different than the one previously reached” (Catherine A. v David B., 249 AD2d 964, 964, lv dismissed 92 NY2d 919 [internal quotation marks omitted]). Respondent failed to establish that there was newly discovered evidence that he is not the child’s father; indeed, he admitted at the hearing that his motion was based on allegations made to him more than 10 years earlier.

Although the court initially granted that part of the motion of respondent seeking genetic marker testing for himself, petitioner and the child, the court properly vacated that order upon the law guardian’s motion to deny that requested relief on the ground of equitable estoppel. Following a hearing and an in camera interview with the 14-year-old child, the court properly determined that it is not in the child’s best interests to order the genetic marker test (see Family Ct Act § 418 [a]; Hammack v Hammack, 291 AD2d 718, 719-720). “Given the delay of [nearly 14] years from the child’s birth to [respondent’s] application, it was incumbent upon [respondent] to proffer more than conjecture that the boy is not his child” (Catherine A., 249 AD2d at 965). Present—Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Burns, JJ.

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Bluebook (online)

295 A.D.2d 995, 744 N.Y.S.2d 777, 2002 N.Y. App. Div. LEXIS 6289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kim-f-v-glenn-w-nyappdiv-2002.

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