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Penny D. Taylor v. Joseph Rosa: A Recent Decision Changing the Law of Paternity By Estoppel

By: James L. Hyer, Esq. On May, 2, 2007, a decision was rendered in Penny D. Taylor v. Joseph Rosa, No. 76026-04 (Bronx Sup. 2007), significantly changing the law of Paternity By Estoppel.This noteworthy decision came less than a year after the New York State Court of Appeals holding In The Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 853 N.E.2d 610, 820 N.Y.S2d 199, 2006 N.Y. Slip Op. 05238 that ruled in favor of Paternity By Estoppel. In that case, the Court of Appeals upheld the lower court determinations that a man was required to pay child support for a child despite irrefutable DNA evidence that the child was not biologically his. In Shondel J., while the man testified that he had only seen the child four times since the child’s birth, the Court of Appeals asserted that the man had held himself out to be the child’s father by providing the child with financial support, signing a sworn statement that he was the child’s father, authorizing the child’s last name to be changed to his own, regularly communicating and visiting with the child, and identifying the child as his own in his life insurance policy. Although the child was only four or so years of age when the action was filed, the Court of Appeals found that the man’s actions caused the child to justifiably rely that he was the father and held it was in the best interests of the child to prevent the father from denying paternity.In Penny D. Taylor v. Joseph Rosa, the Bronx Supreme Court struck a blow to the Court of Appeals decision in Shondel J., providing that the rule of Paternity By Estoppel is not to be blindly applied in every case, but only if doing so would truly be in the best interests of the child.In Penny D., as in Shondel J., the man took actions to assert himself as the father of the child. Rosa married the mother prior to the child’s birth so that the child would be an issue of the marriage, signed the child’s birth certificate, provided financial support and identified the child as his own. However, after only living with the child and mother for a few months, the parties separated. Rosa began to pay for child support, and the parties obtained a Judgement of Divorce that named the child as an issue of the marriage. After having no contact with the child since the separation, Rosa later filed a Summons and Petition for Visitation and resumed visitation.Due to the actions, words and deeds of the mother during the visitation proceeding, Rosa questioned the paternity of the child and was compelled to seek a DNA test, which revealed that he was not the biological father. Rosa was not permitted to admit the DNA test results at a visitation proceeding, but later filed an Order to Show Cause with the Bronx County Supreme Court requesting the Judgement of Divorce be modified to remove any reference to the child as Rosa’s child and to remove any obligations to pay child support.Rosa sought to distinguish the matter from Shondel J., offering that there was no significant parent/child relationship, limited contact between Rosa and the child, the child had never identified Rosa as its father, and Rosa had not held the child out to be his own or introduced the child to his family. He claimed applying Paternity By Estoppel would act against the best interests of the child, and would only serve to hinder any possibility of the true father forming a relationship with the child. Rosa asked the Supreme Court to consider the language of Shondel J., where the Court of Appeals itself indicated that Paternity BY Estoppel should not be applied routinely.The Court held that the DNA test constituted new evidence that warranted modifying the Judgement of Divorce to delete provisions relating to the child, under CPLR 5015 § (a)(2). Citing Barbara v. Michael I., 24 AD3d 451 [2nd Dept. 2005],the Court found that the DNA test provided clear and convincing evidence necessary to overcome the presumption that the child, born in wedlock, was a child of Rosa and that the Judgement should be modified pursuant to CPLR 5015 § (1)(2). Addressing Shondel J., the Court noted that the Plaintiff had not made a showing that it would be in the child’s best interests for Rosa to be estopped from denying paternity.The Decision in Penny D. Taylor v. Joseph Rosa represents a landmark case in the area of the law of paternity where, for the first time since the Court of Appeals Decision in Shondel J., the Supreme Court has held that Paternity By Estoppel should not be applied in all cases involving a dispute over paternity where the alleged father has had contacts with the child.

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