119 Misc. 2d 16 | N.Y.C. Fam. Ct. | 1983
OPINION OF THE COURT
There is currently pending before this court a custody proceeding between the above-named parties wherein each is seeking to be awarded custody of Shawn Steven Boyles, born July 25, 1978. The sole matter presently before the court is an application brought on by the petitioner for an order excluding the results of a human leucocyte antigen (HLA) blood-grouping test from being offered in evidence in the custody proceeding. In addition, the petitioner requests an order prohibiting the respondent from raising the question of paternity in the custody proceeding.
The record indicates, at the inception of this proceeding, the parties, on consent and with advice of counsel, agreed that a blood-grouping test be done. The results of that test proved inconclusive in that the petitioner was not excluded as the father of Shawn. Thereafter, the parties once again consented, with the advise of counsel, to take a further blood-grouping test known as a human leucocyte antigen blood-tissue test, which positively excluded the petitioner as being the father of Shawn. The petitioner’s attorney does not dispute the results of the test. At this time, at the eve of the custody hearing, the petitioner has made the instant application arguing that the best interests of the
Also in support of his application, the petitioner argues the doctrine of estoppel and public policy grounds, citing the cases of Hill v Hill (20 AD2d 923) and Matter of Virginia E. E. v Alberto S. P. (108 Misc 2d 565). The court differentiates those cases from the one at bar in various respects. Firstly, in this case the results of the blood tests are already before the court. The petitioner cannot “have his cake and eat it too”. He consented to the HLA blood test, obviously in the hope that it would substantiate his argument that he is the child’s natural father. Just be
In this case it is the court’s opinion that common sense and public policy will not be outraged should the court deny the application and allow the HLA blood test results into evidence and allow the paternity question to be determined. In this case the court is compelled to allow the HLA blood-grouping test into evidence in that the test was done on consent, the results are before the court and it has such a significant bearing on the issues. The court cannot condone turning its back and ignoring the fact that the petitioner is not the child’s father. The court readily admits that, quite probably, the petitioner is the child’s “psychological parent”. The Court of Appeals in Matter of Bennett v Jeffreys (40 NY2d 543) has totally rejected the proposition that a psychological parent may acquire some sort of squatter’s rights in another’s child.
The significance of Bennett v Jeffreys (supra) to this proceeding is evident and, quite possibly, the basis for the instant application, in that its mandates significantly change the issues from merely best interests to extraordinary circumstances and best interests.
Accordingly the motion is denied.