2025 NY Slip Op 51406(U)
N.Y. Fam. Ct., Kings Cty.2025Background
- Child Olivia G. born 2018; Nathaniel G. held himself out and acted as father for 7+ years (extensive visitation, parenting, services); child bears his surname.
- ACS removed Olivia at birth and included Nathaniel in permanency planning, provided services, and sent numerous case communications that treated him as a parent; he was never told he needed to file a paternity petition to preserve legal rights.
- Agency filed a TPR petition on December 5, 2023, alleging Nathaniel lacked consent-rights because he had not filed a paternity petition; this was the first time the agency made that claim.
- Nathaniel filed a paternity petition on September 18, 2024 and moved to have it deemed filed nunc pro tunc to a date before the TPR so he would qualify as a "consent father" under DRL § 111(1)(e).
- Petitioner (St. Dominic’s) opposed nunc pro tunc relief as improper to retroactively confer legal status; the Attorney for the Child supported nunc pro tunc relief; the mother did not oppose adjudication of paternity.
- Family Court found Nathaniel’s delay was attributable to agency conduct and misleading representations, found no evidence of bad faith, concluded no prejudice to the agency, and granted nunc pro tunc relief, holding he is a consent father under DRL § 111(1)(e).
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether court may deem paternity petition filed nunc pro tunc to predate TPR so father qualifies as a "consent father" under DRL § 111(1)(e) | Nunc pro tunc cannot be used to retroactively confer legal status or circumvent statutory prerequisites | Relief appropriate under CPLR §§ 2001/2004 because agency conduct caused the delay and denying relief would be unjust | Granted: court exercised CPLR authority and deemed petition filed prior to TPR, making father a consent father |
| Whether CPLR § 2001/2004 authorize correction/disregard of filing-timing defects here | Agency: procedural timing cannot be disregarded to create rights; relief would improperly alter statutory scheme | Nathaniel: CPLR permits correction/disregard where no prejudice and justice requires it; agency conduct excuses delay | Court: CPLR 2001/2004 permit nunc pro tunc relief where no prejudice and justice warrants; relief was appropriate here |
| Whether agency or other parties would be prejudiced by nunc pro tunc relief | Agency: opposes, argues it would circumvent statutory prerequisites and possibly impair case | Nathaniel/AFC: no prejudice—TPR merits already litigated; evidence presented covered both parents | Court: no prejudice—TPR proceeding already addressed same evidence; no retrial or new discovery required |
| Whether doctrines of estoppel, legislative intent, and due process support relief | Agency: statutory text controls; earlier filing requirement in DRL § 111 remains relevant | Nathaniel/AFC: agency representations and Parental Equity Act favor construing remedially and avoiding due process deprivation; estoppel may apply | Court: legislative history of PEA and constitutional avoidance support relief; agency conduct estops it from denying father status |
Key Cases Cited
- Grskovic v. Holmes, 111 A.D.3d 234 (distinguishing "correction" and "disregarding" under CPLR 2001)
- Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 317 (allowing courts to fix or, when nonprejudicial, overlook filing defects)
- Zelenka v. Hertz, 230 A.D.3d 539 (lateness may be disregarded where no prejudice)
- Oleynik v. Rozenfeld, 230 A.D.3d 1152 (procedural defects may be disregarded absent prejudice)
- Pizzo v. Lustig, 216 A.D.3d 38 (procedural defects harmless where matter considered on merits)
- Bender v. Health & Hospitals Corp., 38 N.Y.2d 662 (governmental subdivision estoppel where wrongful/negligent conduct induced reliance)
- Matter of Jamie J., 30 N.Y.3d 275 (canon of constitutional avoidance in family-law contexts)
- Stanley v. Illinois, 405 U.S. 645 (unwed fathers’ liberty interest recognized)
- Lehr v. Robertson, 463 U.S. 248 (constitutional limits on applying adoption notice/consent statutes to fathers with established relationships)
- Van Voast v. Cushing, 32 A.D. 116 (nunc pro tunc relief where delay resulted from reliance on misleading conduct)