Matter of Kerry Ann P. v. Dane S.

121 A.D.3d 470, 994 N.Y.S.2d 99

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 2014
• Docket: 13150
• Status: Published

Opinion

Order of filiation of the Family Court, Bronx County (Peter Passidomo, J.), entered on or about July 16, 2013, which denied respondent’s request for genetic marker testing and declared him to be the father of the subject child, Kymanie S., unanimously affirmed, without costs.

The evidence supports the Family Court’s finding that the presumption of legitimacy was overcome based on the mother’s testimony that she and her ex-husband, although still married at the time of the subject child’s birth, had been separated for several years, and that she was in an exclusive sexual relationship with respondent during the relevant period prior to the child’s birth (see Matter of Bristene B., 102 AD3d 562 [1st Dept 2013]). The court’s determination that this testimony was “credible” is entitled to great weight (id.).

The evidence presented at the hearing established that the six-year-old child considers respondent to be her father, she misses visiting with him, and has formed a familial bond with several of his relatives, including his two other children whom she identified as her brother and sister (see Matter of Commissioner of Social Servs. v Victor C., 91 AD3d 417, 418 [1st Dept 2012]). It further established that she calls him “daddy,” he introduced her to relatives as his daughter, and he did not dissuade her from forming relationships with his children and other relatives. Thus, the court properly determined that the best interests of the child require that respondent be equitably estopped from denying paternity (see Matter of Glenda G. v Mariano M., 62 AD3d 536 [1st Dept 2009], lv denied 13 NY3d 708 [2009]).

Concur — Tom, J.E, Friedman, Feinman, Gische and Kapnick, JJ.