210 A.3d 1199
R.I.2019Background
- Maurice and Judith Cusick are divorced parents of four children (two minors); post-divorce dispute centers on children's medical risk for hereditary Brugada Syndrome.
- Maurice was diagnosed with Brugada Syndrome in 2016; the disorder carries risk of ventricular arrhythmia and sudden death and is hereditary.
- In March 2017 Judith moved under Family Court Rule 35 to compel Maurice to submit to limited genetic testing so the children could be tested for a familial variant or be spared invasive EKG provocation testing.
- At a two-day hearing medical experts testified that parental genetic testing is the preferred, less-invasive method to determine children's risk; alternative sodium-blocker EKG testing is more invasive and may yield false negatives.
- The Family Court ordered Maurice to provide a sample solely to confirm or rule out a familial Brugada variant for the minor children, with restrictions preventing use of results for other purposes; Maurice appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordering Maurice to submit to genetic testing violated his constitutional right to privacy and due process | Maurice contends compelled testing infringes privacy and due process | Judith argues testing is medically necessary and in children’s best interests; process protections were provided | Court: Issues waived for appeal (not raised below); even on merits Family Court balanced privacy vs. children’s best interests and afforded due process |
| Whether the Family Court abused its discretion by relying on allegedly fraudulent medical evidence (Dr. Lombardi’s affidavit) | Maurice claims the affidavit was false and improperly relied upon; hearing justice was biased by acquaintance with affiant | Judith relied on affidavit and expert testimony showing testing preferred and less invasive | Court: Maurice waived objection to affidavit at trial; no abuse of discretion in relying on it |
| Whether the hearing justice overlooked or misconceived material evidence (esp. plaintiff’s physician Dr. Davoudi’s views) | Maurice asserts the court ignored/sidelined Dr. Davoudi’s opinion and was swayed by personal ties | Judith points to multiple medical opinions favoring genetic testing and court findings reflecting balancing of evidence | Court: Findings were supported by record; trial justice sufficiently considered evidence and did not clearly err |
| Whether Rule 35 order was appropriate and narrowly tailored to children’s best interests | Maurice argued testing was not clinically justified and intrusive | Judith argued test would spare children invasive/annual testing and optimize care | Court: Affirmed; testing ordered for limited purpose with safeguards as in children’s best interest |
Key Cases Cited
- Vieira v. Hussein-Vieira, 150 A.3d 611 (R.I. 2016) (Family Court custody/best-interest factual findings reviewed for abuse of discretion)
- McDonough v. McDonough, 962 A.2d 47 (R.I. 2009) (trial-justice factual findings will not be disturbed unless they overlook or misconceive material evidence)
- O’Donnell v. O’Donnell, 79 A.3d 815 (R.I. 2013) (questions of law reviewed de novo from Family Court)
- Rohena v. City of Providence, 154 A.3d 935 (R.I. 2017) (raise-or-waive rule on appellate review)
- In re Miguel A., 990 A.2d 1216 (R.I. 2010) (limited exception to raise-or-waive rule for basic constitutional rights only in narrow circumstances)
- State v. Breen, 767 A.2d 50 (R.I. 2001) (discussion of exceptions to waiver rules)
- Dupré v. Dupré, 857 A.2d 242 (R.I. 2004) (trial justice has broad discretion to determine relevant factors in custody/child best-interest inquiries)