A support magistrate in Manhattan’s Family Court acted outside the scope of her statutory authority by resolving “issues of contested paternity involving claims of equitable estoppel” and, as a result, the magistrate’s judgment that a man is the father of a child must be reversed, a state appeals court has ruled.
An Appellate Division, First Department, panel has decided that the man, referred to only as Travis S. in the opinion, is entitled to further proceedings regarding his apparent contesting of being the father of the child, for whom support is being sought.
The unanimous panel pointed to errors made by both Support Magistrate Linda Safron and an unnamed Family Court judge at appearances by Travis S. before them in 2017, during which he sought—at least at his first appearance—to have a DNA test ordered.
It now appears Travis S. will have further proceedings at which he can file a motion to vacate the default or re-calendar his case and then perhaps pursue again his DNA test request.
The panel, composed of Justices David Friedman, Rosalyn Richter, Ellen Gesmer, Cynthia Kern and Peter Moulton, wrote in its Jan. 3 opinion that the paternity order resolving “issues of contested paternity involving claims of equitable estoppel” raised by the child was outside of the scope of Safron’s authority as set out in Family Court Act Section 439 (a), (b).
In addition, the justices wrote, so were the Aug. 1, 2017, proceedings resulting in the order and Safron’s issuance of a determination, before Family Court had considered the estoppel issue, that Travis S. couldn’t obtain a DNA test.
Moreover, the panel said the record “shows that the Family Court judge who was to have heard [Travis S.’s] request for a DNA test and the estoppel issue on May 15, 2017, did not wait for [Travis S.] to join his attorney in the courtroom before denying [his] request.”
Then, when Travis S. soon appeared before Safron without his lawyer, she gave him “technical instructions for counsel about the procedure and substance of the motion to be filed to have the matter heard by a judge,” the panel pointed out.
“Given this, and because [Travis S.] appeared at the August 1, 2017 proceedings prepared to file his motion to vacate the default or re-calendar the case, this was not an ordinary default situation for purposes of CPLR 5511, even though his attorney stood mute at those proceedings,” the panel wrote, adding that Safron had “abused her discretion by denying [Travis S.’s] request to adjourn the proceedings where [he] needed the adjournment … to file the motion.”
Lewis Calderon, a lawyer for Travis S., could not be reached for comment. The city’s Law Department, which, according to the First Department decision, represented the petitioner in In re Caroline D. v. Travis S., did not respond to a request for comment.
Attorney Shirim Nothenberg, with the Lawyers for Children Inc., represented the child, and she declined to comment Thursday.