In a case before Supreme Court Justice Elisa Koenderman sitting in Queens County, Supreme Court, and a father had requested a paternity test and Justice Elisa Koenderman denied his request.
The Case
The case involves a husband and wife who were married in 2011. The wife gave birth to a son “LP” in 2012. A divorce action was initiated in 2015. However, at the time the divorce action was brought LP was living with the wife’s parents in China. This was pursuant to an agreement the parties had. Thereafter LP came back to the United States in 2016.
Husband Requests Visitation
After LP returns to the United States the father requests visitation with him; The mother grants his request and he starts seeing his son. Thereafter the father brought a proceeding before Justice Elisa Koenderman requesting an order from the Judge to have all parties’ paternity tested to determine whether he is really the father. The child’s mother and an attorney appointed to represent the child oppose the father’s application for paternity testing.
Presumption of Paternity
Justice Koenderman renders a decision against the father. She ruled that the presumption a child born during the marriage and the biological product of the marriage is “one of the strongest and the most persuasive known to the law.” She also brings up a theory called equitable estoppel.
Equitable Estoppel
Under equitable estoppel a person is prevented from asserting a claim which would prejudice another party. Here the Judge held the husband is equitably estopped from challenging the paternity of LP. He has previously represented himself to be LP’s parent. He has visited with LP. No evidence has been presented that the wife engaged in sexual relations with anyone else other than the father during the course of the marriage. In addition, the father continually presented himself as LP’s natural father in numerous ways. Judge Koenderman therefore ruled the father had not been able to rebut the presumption LP was a legitimate son and therefore his motion for an order allowing paternity testing was denied.
Conclusion
Fathers be careful. If you hold yourself out to be a child’s father the court can stop you from later demanding paternity testing to see if you are really the biological father.
Elliot S. Schlissel, Esq. is a father’s rights attorney who has for more than 3 decades has been representing fathers throughout the Metropolitan New York area on issues involving custody, visitation and child support.
