On January 13, 2017, Respondent M.S., (hereinafter, "M.S."), by and through his attorney, Nickiesha C. Radway, Esq. of the Law Offices of Gail M. Walton, filed an objection to an Order of Support entered by Support Magistrate Jodi Hirschman dated December 23, 2016. On or about March 3, 2017, The Children's Law Center (hereinafter, "CLC" or "attorney for the child") filed a rebuttal to the objection.^[FN1] Petitioner, K.A. (hereinafter, "K.A.") did not file a rebuttal.

This Court, after a review of the court file, including the audio recording, written findings and evidence presented, finds that M.S.'s acknowledgment of paternity will be vacated as there no longer exists a legal liability on behalf of M.S. to pay child support, and therefore, the objection to the Order of Support is moot.

On November 2, 2016, Petitioner, K.A., filed a petition for child support under docket number F-xxxxx-16. On December, 26, 2016, the first appearance for the child support matter, K.A. waived her right to counsel and M.S. appeared with counsel, Tejawatie Randihal, Esq. M.S. argued that he is not the biological father, and verbally objected to the court dismissing his prior petition to vacate the acknowledgment of paternity in October 2016.^[FN2] M.S. stated that he did not know he could have appealed the dismissal of his paternity case. During the child support proceedings and based on Support Magistrate Hirschman's findings of facts, both parties acknowledged that M.S. is not the biological father. The parties then consented to an Order of Support for the subject child, M.S. Jr. (D.O.B. 10/12/2007), wherein M.S. agreed to pay $99.00 per week in child support and the parties agreed to equally split the subject child's un-reimbursed health-related costs.

On January 13, 2017, M.S., by and through his attorney, filed an objection to the Order on Support. First, M.S. argues that he filed a petition to vacate the acknowledgment of Paternity since he signed the acknowledgment based upon a mistake of fact or fraud. Second, M.S. argues that he is not the biological father of the minor child based on K.A.'s own admission. M.S. further argues that K.A. knew he was not the father when the child was born, but failed to disclose this information before he signed the Acknowledgment of Paternity.^[FN3] Additionally, M.S. argues that during a court appearance regarding custody of the subject child, K.A. admitted to the referee that she was aware that he was not the father of the child when the child was born.^[FN4] Third, M.S. argues that early in the parties' custody proceeding, the referee suggested that the parties vacate Respondent's Acknowledgment of Paternity by agreement.^[FN5] Lastly, M.S. argues that he had no contact with the child for over five (5) years, and reiterates that it would be unfair and a miscarriage of justice to continue the child support order because he is not the biological father.

On December 5, 2016, CLC was assigned in absentia to represent the child, who is nine (9) years old, in the related custody matter under docket - V-xxxxx-16. On January 26, 2017, this Court also assigned CLC to represent the subject child in the child support and paternity proceedings. This Court also permitted the attorney for the child to submit a Rebuttal to M.S.'s Objection. First, CLC argues that M.S.'s objection to the dismissal of his petition to vacate the acknowledgment of paternity is procedurally improper because he failed to timely file the objection within the required thirty-five (35) days after receiving that decision. Second, CLC supports the Support Magistrate's decision to dismiss and argues M.S.'s petition to vacate the acknowledgment of paternity was properly denied on the merits because he failed to prove a material mistake of fact. The attorney for the child likened the acknowledgment of paternity to a contract, and argues that the court must determine whether a mistake of fact was truly material, and in this case M.S. did not prove there was a mistake of fact. Lastly, CLC argues that it would not be in the child's best interest "to leave him fatherless, and without child support, at this juncture."^[FN6]

In order for the court to properly address the issue of support, the court must first address the paternity petition under docket number, P-xxxxx-16, that was dismissed with prejudice, as this petition is the crux of M.S.'s argument in the within Objection to the Order of Support.

On July 1, 2016. M.S., filed a petition to vacate the acknowledgment of paternity and alleged that he took a private DNA test, which indicated that he was not the child's biological father. On the first court appearance, July 26, 2016, the parties appeared and waived counsel, and the matter was adjourned. On October 5, 2016, both parties appeared and waived counsel again. The Support Magistrate informed M.S. that as the petitioner in this case, he bears the burden to [*2]prove by a preponderance of the evidence that he signed the acknowledgment of paternity under fraud, duress or mistake of fact. The court proceeded to conduct a hearing, and M.S. presented his first witness, Mr. S.K., his long-time friend and confidant. Mr. S.K. testified that before the child was born, M.S. had expressed doubts about being the subject child's father because the parties were in an "on and off relationship."^[FN7] M.S. testified that he discovered that another man fathered the child after the child was born.^[FN8] When the Support Magistrate asked M.S., "why did you sign the acknowledgment of paternity?"^[FN9] M.S. replied, "[b]ecause I had another talk with K.A. while she was inside of the operating room, and I said, and I quote, 'Don't ever leave me. I love you,' and I asked her one last time...'Do you have any Maury secrets,' the talk show Maury, because this show is predominantly about, are you the father or not. I said it in those words, and she told me, 'No'."^[FN10] M.S. testified that "after hearing it from her mouth and the scene that [they] were in [he] believed it," and he "went along under false pretenses."^[FN11] M.S. testified that he also believed he was the father because he and K.A. were having unprotected sex, and he knew he could be the child's father.^[FN12]

On October 5, 2016, Support Magistrate Harold E. Bahr III issued a decision on the record, and also submitted a written Order of Dismissal and Findings of Facts for the paternity case. Ultimately, the Support Magistrate dismissed the paternity petition with prejudice and determined that M.S. "made no mistake of fact when he signed the acknowledgment because he expressed doubts about his paternity during the mother's pregnancy and when she was in the hospital giving birth. To be a mistake of fact, he had to have no doubts about his paternity when he signed."^[FN13]

A party seeking to vacate an acknowledgment of paternity more than 60 days after it was executed must establish that it was signed by reason of fraud, duress, or material mistake of fact (See, Family Ct. Act § 516—a[b] [ii]; Matter of Derrick H. v. Martha J., 82 AD3d 1236, 1237, 922 N.Y.S.2d 83; Matter of Santos Ernesto R. v. Maria S.C., 66 AD3d 910, 911, 887 N.Y.S.2d 265). Importantly, if this burden is met, the court is then required to consider the best interests of the child before ordering a genetic test. See, In the Matter of Westchester County Dept. of Social Serve. o/b/o Melissa B. v. Robert W.R., 25 AD3d 62, 803 N.Y.S. 2d 672 (2d Dep't 2005). If the [*3]petitioner satisfies this burden of proving fraud, duress or material mistake of fact, "the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child's best interest, from challenging paternity." Matter of Derrick H. v. Martha J., 82 AD3d at 1237, 922 N.Y.S.2d 83; See, Family Ct. Act § 516—a[b][ii]; Matter of Santos Ernesto R. v. Maria S.C., 66 AD3d at 912, 887 N.Y.S.2d 265; Matter of Darlene L.—B. v. Claudio B., 27 AD3d 564, 564—565, 813 N.Y.S.2d 139; Matter of Westchester County Dept. of Social Serve. v. Robert W.R., 25 AD3d 62, 71—72, 803 N.Y.S.2d 672, citing, In re Oscar X.F., 107 AD3d 795, 795—96, 967 N.Y.S.2d 117, 118 (2013).

Generally, this Court's review of child support orders is a narrow one, because it is the Support Magistrate, rather than the reviewing judge, who is present at the evidentiary hearing and is uniquely able to evaluate both the evidence and the credibility of the witness prior to making an order. Minerva R. v. Jorge L.A., 59 AD3d 243, 244 (1st Dep't 2009); Matter of Sosa v. Sosa, 13 AD3d 638 (2d Dep't 2004). Therefore, as a general rule, the Support Magistrate's findings of fact should not be rejected unless they are contrary to the weight of the credible evidence or in error as a matter of law. Kent v. Kent, 7 Misc 3d 1031(A) (Bronx Co. Family Ct. 2005); Matter of Weiner v. Weiner, 97 Misc 2d 920 (Monroe Co. Family Ct. 1979). (Emphasis added).

Courts have inherent power, as well as statutory power under CPLR § 5015, to set aside a judgment on appropriate grounds. McMahon v. City of NY, 105 AD2d 101, 104, 483 N.Y.S.2d 228, 230 (1984). Additionally, Courts have the inherent discretionary power to vacate an order in the interest of substantial justice. See, Commissioner of Welfare of City of New York v. Carone, 34 AD2d 521, 308 N.Y.S. 2d 444 (1st Dep't 1970); Ariel G. v. Greysy C., 133 AD3d 749, 20 N.Y.S. 3d 145 (2d Dep't 2015); Mago v. Thakur, 110 AD3d 683, 685—86, 972 N.Y.S.2d 313, 315—16 (2d Dep't 2013), citing Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68, N.E.2d 1156, 1160 (2003); Galasso, Langione & Botter, LLP v. Liotti, 81 AD3d 884, 917 N.Y.S.2d 667 (2011).

Although M.S. failed to timely vacate the acknowledgment of paternity within 60 days, and also failed to timely file an objection within 35 days of receiving Support Magistrate Bahr's decision, the law favors a disposition on the merits. See, Gibbs v. St. Barnabas Hosp.. 61 AD3d 599 (1st Dep't 2009); see also, Catarine v. Beth Israel Med. Ctr., 290 AD2d 213, 215, 735 N.Y.S.2d 520 (2002). As such, this court will decide these matters on the merits.

Here, Support Magistrate Bahr dismissed M.S.'s paternity petition opining there was no mistake of fact. CLC argued that the mistake had to be material before the Court could grant M.S.'s vacatur of the acknowledgment of paternity. To the contrary, M.S. argued that the acknowledgment of paternity should be vacated because he signed it based on mistake and fraud. This Court notes that neither the Support Magistrate or CLC explored whether or not M.S. established that the acknowledgment could have been vacated based on fraud, which is a legitimate basis pursuant to both statute and case law. This Court finds that fraud existed at the time M.S. signed the acknowledgment of paternity, based on the testimony and evidence submitted. This Court found credible the testimony of M.S. when he testified during the paternity proceeding that he signed the acknowledgment of paternity because he believed K.A. when she told him "no" after asked if there were any Maury secrets while they were in the [*4]operating room as she was about to give birth.^[FN14]

In addition, based on the admission of the parties, this Court finds that there was mutual consent between the parties to vacate the acknowledgment of paternity. During the paternity proceeding on July 26, 2016, K.A. asked whether she could get M.S.'s name off the birth certificate, and the Support Magistrate informed her that it is not up to her, and that M.S., as the petitioner in that case, must prove fraud, duress or mistake of fact.^[FN15] Also, during the child support proceeding on December 16, 2016, K.A. stated, "we could have went and vacated his name off of all birth certificates, because I understand that this does not have to be."^[FN16] Therefore, this Court disagrees with the decision that M.S.'s name cannot be removed from the birth certificate because the parties can agree to vacate the acknowledgment of paternity on consent. Moreover, during a conference before this Court, K.A. indicated that she previously tried to vacate the acknowledgment of paternity, but the matter was dismissed based on her failure to appear.^[FN17]

Furthermore, this Court disagrees with CLC's argument that as a matter of public policy, M.S. should be estopped from vacating the acknowledgment of paternity because he created the risk of leaving the child in a "worse position than if he had never become involved-such as by preventing the mother from searching for another possible father."^[FN18] This Court finds that both parties acknowledged that M.S. does not have a meaningful relationship with the subject child. During the custody hearing on December 5, 2016, K.A. stated that M.S. does not have a relationship with the subject child. Specifically, "in response to the referee's questions, the mother agreed that [M.S.] had not seen the subject child for at least five years, and stated that the subject child called his half-sister's father 'daddy'."^[FN19] In addition, Petitioner stated that her daughter's father has been taking care of the subject child.^[FN20] During the child support hearing on December, 16, 2016, in response to Support Magistrate Hirschman's statement that the child "in essence has no father," K.A. replied, "my child, in essence does have a father. He has my daughter's father, whose been taking care of him for the past three years."^[FN21] Moreover, during the [*5]interview with the attorney for the child on January 18, 2017, the child stated he called his sister's father daddy, and he believed that his last name was the same as his father, although he did not know him.^[FN22]

Here, the subject child does not have a parent-child relationship with M.S., despite the fact that he shares his name. In 2016, M.S. testified that he had not seen the child in five (5) years.^[FN23] The attorney for the child indicated that the subject child calls the K.A.'s paramour "daddy", and even the mother indicated that the child has had a parent-child relationship with her paramour for at least the past three (3) years. Further, the lack of a substantial relationship is evidenced by the child himself after he told his attorney that he doesn't know who is father is, but he thinks he has his name.^[FN24] The attorney for the child's argument that M.S. prevented the mother from searching for the child's biological father is unfounded. On March 17, 2017, K.A.'s attorney indicated to this Court that K.A. knows who the subject child's biological father is, and that she was in the process of trying to locate him. Considering all of the above factors, when M.S. is no longer recognized as the legal father, the subject child will not be prejudiced. The subject child has the loving support from a father-figure in K.A.'s paramour based on her own admission, and K.A. also knows who the subject child's biological father is, and nothing is or has prevented her from fostering a relationship between the subject child and his biological father.

Based on the foregoing, and in the interests of justice, the dismissal of the Petition to Vacate the Acknowledgment of Paternity under docket P-xxxxx-16 dated October 5, 2016 with prejudice is hereby vacated, and the matter is restored to the Part 3 calendar on August 25, 2017 for the purposes of disposition within this decision and order. M.S.'s objection to the dismissal of the Petition to Vacate the Acknowledgment of Paternity under docket P-xxxxx-16 is hereby granted, and the acknowledgment of paternity is vacated based upon mutual consent of the parties.

Lastly, the child support matter under docket F-xxxxx-16 is restored to the Part 3 calendar on August 25, 2017 for the purposes of disposition within this decision and order. As there no longer exists a legal liability on behalf of M.S. to pay child support, the Order of Support on Consent is vacated and terminated effective December 23, 2016, and the objection to the Order on Support under docket F-xxxxx-16 is hereby dismissed with prejudice as moot.

Clerk to notify counsel, parties and Support Magistrates.