Decisions of Interest

Move to CT Did Not Terminate NY Domicile

Though a couple moved to Connecticut for educational reasons, their domicile remained in New York and a divorce action brought in New York therefore need not be dismissed for lack of jurisdiction. P.C. v. K.K., 53782/10, NYLJ 1202479408573, at *1 (Fam. Ct., Kings Cty. 1/7/11) (Thomas, J.).

The wife moved for dismissal of her husband's divorce action, claiming that they did not meet the jurisdictional requirements of Domestic Relations Law ' 230. Under DRL
' 230 (1), an action for divorce may be maintained only when “[t]he parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding.” The wife based her argument on the fact that she and her husband had been living in Connecticut together less than a year prior to the filing of the divorce. (There was no dispute concerning the facts that the parties were married in New York and the wife was a resident of New York at the time of filing.) The court found New York jurisdiction proper because the couple had lived in New York prior to their move to Connecticut, and had moved to that state only so that the wife could pursue a graduate degree at Yale University. All indications were that their move there had been considered by both parties as temporary, so their domicile at the time of the move ' New York ' should be presumed their continuing domicile. Therefore, as the wife was a domiciliary of New York for several years, despite her temporary residency in Connecticut, and the parties were married in New York, the requirements of DRL ' 230 were met and the court need not dismiss the divorce action for lack of jurisdiction.

Best-Interests Inquiry May Stop DNA Test Only Under Certain Circumstances

Judge Ann E. O'Shea of Family Court, Kings County, ordered DNA testing to establish the petitioner's paternity because the mother, who sought to deny him the test, did not present evidence that would trigger the need to inquire into the child's best interests. Matter of Felix O v. Janette M., P-02420/04, NYLJ 1202477812592, at *1 (Fam., KI, Decided Dec. 22, 2010)

The petitioner, identified as Felix, is the putative father of a child born to a woman (Janette) who was married to another man (Herbert). In this action he sought DNA testing and a declaration that he was the child's father. Through testimony, it was established that when the mother was pregnant she showed the petitioner an ultrasound picture of the baby and led him to believe he was the child's father. This being the case, Felix gave the mother money each month during her pregnancy. After the child was born, he provided the child with financial and emotional support and made efforts to be part of her life, including by visiting weekly with her; buying her diapers, furniture and other necessities; and attending birthday parties and other special events. The mother's husband, Herbert, knew about all of these contacts and he and Janette willingly accepted Felix's gifts, money and general child-rearing assistance. Felix asked the mother several times to get the child's birth certificate changed to reflect his parenthood, but she put him off each time. He also asked her to let him get a DNA test done, which she permitted by providing him with a cheek swab. (The results of that test were not admissible in this proceeding.) Soon after he brought this action to seek an order of paternity, just prior to the girl's 5th birthday, Janette cut off the petitioner's visits with the child.

Janette and Herbert asked the court to deny the DNA test. The mother claimed Felix was not the father, explaining that she had accepted his gifts to the child because “he offered to buy clothes for her and I needed it and he was there,” and because “he had a car and was willing to spend money.” She admitted that she once sent Felix a card in which she addressed him as “the father of my child,” but claimed that she did so only out of friendship. This explanation, concluded the Judge O'Shea, was “nonsensical on its face.”

The case required the court to interpret Family Court Act (FCA) ' 532, which controls in contested paternity matters. It says that when paternity questions are at issue, the court “shall advise the parties of their right to one or more genetic marker or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child, and the alleged father to submit to one or more genetic marker or DNA tests” unless the court finds that such testing “is not in the best interest of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.” FCA ' 532(a). The onus is on the person seeking to stop such testing to show by clear and convincing evidence that one of the three exceptions to the right to DNA testing applies. Absent that showing, Judge O'Shea said, the wording of ' 532 demonstrates that the legislature intended to give parties an unfettered right to DNA testing, with no requirement that consideration be given to the best interests of the child.

Having shown, without opposition, that he had had sexual relations with the mother at about the time of the child's conception, the petitioner had successfully rebutted the presumption of legitimacy. The question of the child's paternity was not res judicata. Thus, these possible exceptions to the right to DNA testing did not trigger a need for a best-interests inquiry. The only question remaining was whether equitable estoppel should apply. To invoke equitable estoppel, the mother would have to show: 1) a representation by Felix that he was not the father or did not wish to assert that he was; 2) Janette's and/or Herbert's reliance on Felix's representation; and 3) harm resulting from their reliance on this representation. Here, however, Felix had always held himself out to be the child's father and had not failed to keep contact with and support her financially and emotionally. He made it clear through the years that he would like the child's birth certificate to be changed to show his paternity, and he asked for a DNA test prior to filing this action. The respondents also could produce no evidence of harm resulting from their reliance on Felix's representations. In fact, stated the court, “If estoppel applies at all in this case, it applies to Janette and Herbert. From the date she first told Felix she was pregnant with [the child] until the date she terminated his visits, Janette actively and affirmatively led Felix to believe that he was [the child's] father. She initiated and fostered the relationship between Felix and [the child] for over four-and-a-half years, arranged for his visits, and held Felix out as [the child's] father to his family. For four-and-a-half years, Herbert silently acquiesced in Felix's ongoing and extensive involvement in [the child's] life and in the development of the relationship between them. They both accepted Felix's considerable financial and material support for [the child] year after year. In these circumstances, it is Janette and Herbert who should be estopped from denying Felix his statutory right to a DNA test.” As the respondents had failed to establish any exception to the statutory right to a DNA test, there was no basis for the court to inquire whether ordering the test would or would not be in the child's best interests. For this and other reasons, the court ordered the parties and the child to submit to the DNA test.

Move to CT Did Not Terminate NY Domicile

Though a couple moved to Connecticut for educational reasons, their domicile remained in New York and a divorce action brought in New York therefore need not be dismissed for lack of jurisdiction. P.C. v. K.K., 53782/10, NYLJ 1202479408573, at *1 (Fam. Ct., Kings Cty. 1/7/11) (Thomas, J.).

The wife moved for dismissal of her husband's divorce action, claiming that they did not meet the jurisdictional requirements of Domestic Relations Law ' 230. Under DRL
' 230 (1), an action for divorce may be maintained only when “[t]he parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding.” The wife based her argument on the fact that she and her husband had been living in Connecticut together less than a year prior to the filing of the divorce. (There was no dispute concerning the facts that the parties were married in New York and the wife was a resident of New York at the time of filing.) The court found New York jurisdiction proper because the couple had lived in New York prior to their move to Connecticut, and had moved to that state only so that the wife could pursue a graduate degree at Yale University. All indications were that their move there had been considered by both parties as temporary, so their domicile at the time of the move ' New York ' should be presumed their continuing domicile. Therefore, as the wife was a domiciliary of New York for several years, despite her temporary residency in Connecticut, and the parties were married in New York, the requirements of DRL ' 230 were met and the court need not dismiss the divorce action for lack of jurisdiction.

Best-Interests Inquiry May Stop DNA Test Only Under Certain Circumstances

Judge Ann E. O'Shea of Family Court, Kings County, ordered DNA testing to establish the petitioner's paternity because the mother, who sought to deny him the test, did not present evidence that would trigger the need to inquire into the child's best interests. Matter of Felix O v. Janette M., P-02420/04, NYLJ 1202477812592, at *1 (Fam., KI, Decided Dec. 22, 2010)

The petitioner, identified as Felix, is the putative father of a child born to a woman (Janette) who was married to another man (Herbert). In this action he sought DNA testing and a declaration that he was the child's father. Through testimony, it was established that when the mother was pregnant she showed the petitioner an ultrasound picture of the baby and led him to believe he was the child's father. This being the case, Felix gave the mother money each month during her pregnancy. After the child was born, he provided the child with financial and emotional support and made efforts to be part of her life, including by visiting weekly with her; buying her diapers, furniture and other necessities; and attending birthday parties and other special events. The mother's husband, Herbert, knew about all of these contacts and he and Janette willingly accepted Felix's gifts, money and general child-rearing assistance. Felix asked the mother several times to get the child's birth certificate changed to reflect his parenthood, but she put him off each time. He also asked her to let him get a DNA test done, which she permitted by providing him with a cheek swab. (The results of that test were not admissible in this proceeding.) Soon after he brought this action to seek an order of paternity, just prior to the girl's 5th birthday, Janette cut off the petitioner's visits with the child.

Janette and Herbert asked the court to deny the DNA test. The mother claimed Felix was not the father, explaining that she had accepted his gifts to the child because “he offered to buy clothes for her and I needed it and he was there,” and because “he had a car and was willing to spend money.” She admitted that she once sent Felix a card in which she addressed him as “the father of my child,” but claimed that she did so only out of friendship. This explanation, concluded the Judge O'Shea, was “nonsensical on its face.”

The case required the court to interpret Family Court Act (FCA) ' 532, which controls in contested paternity matters. It says that when paternity questions are at issue, the court “shall advise the parties of their right to one or more genetic marker or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child, and the alleged father to submit to one or more genetic marker or DNA tests” unless the court finds that such testing “is not in the best interest of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.” FCA ' 532(a). The onus is on the person seeking to stop such testing to show by clear and convincing evidence that one of the three exceptions to the right to DNA testing applies. Absent that showing, Judge O'Shea said, the wording of ' 532 demonstrates that the legislature intended to give parties an unfettered right to DNA testing, with no requirement that consideration be given to the best interests of the child.

Having shown, without opposition, that he had had sexual relations with the mother at about the time of the child's conception, the petitioner had successfully rebutted the presumption of legitimacy. The question of the child's paternity was not res judicata. Thus, these possible exceptions to the right to DNA testing did not trigger a need for a best-interests inquiry. The only question remaining was whether equitable estoppel should apply. To invoke equitable estoppel, the mother would have to show: 1) a representation by Felix that he was not the father or did not wish to assert that he was; 2) Janette's and/or Herbert's reliance on Felix's representation; and 3) harm resulting from their reliance on this representation. Here, however, Felix had always held himself out to be the child's father and had not failed to keep contact with and support her financially and emotionally. He made it clear through the years that he would like the child's birth certificate to be changed to show his paternity, and he asked for a DNA test prior to filing this action. The respondents also could produce no evidence of harm resulting from their reliance on Felix's representations. In fact, stated the court, “If estoppel applies at all in this case, it applies to Janette and Herbert. From the date she first told Felix she was pregnant with [the child] until the date she terminated his visits, Janette actively and affirmatively led Felix to believe that he was [the child's] father. She initiated and fostered the relationship between Felix and [the child] for over four-and-a-half years, arranged for his visits, and held Felix out as [the child's] father to his family. For four-and-a-half years, Herbert silently acquiesced in Felix's ongoing and extensive involvement in [the child's] life and in the development of the relationship between them. They both accepted Felix's considerable financial and material support for [the child] year after year. In these circumstances, it is Janette and Herbert who should be estopped from denying Felix his statutory right to a DNA test.” As the respondents had failed to establish any exception to the statutory right to a DNA test, there was no basis for the court to inquire whether ordering the test would or would not be in the child's best interests. For this and other reasons, the court ordered the parties and the child to submit to the DNA test.