Wilson v. LumbWilson v. Lumb
OPINION OF THE COURT
In this special proceeding pursuant to CPLR article 78 petitioner requests an order that respondent Lumb, the St. Lawrence County Family Court Hearing Examiner, comply with section 516-a of the Family Court Act requiring DNA test
The facts are relatively simple. Petitioner previously signed an acknowledgment of paternity form shortly after the birth of a child he believed he had fathered. Sometime later petitioner became suspicious of the child’s parentage. It is alleged the baby’s maternal cousin as well as the sister and friends of the baby’s mother advised petitioner and/or his mother that he might not be the baby’s father. Further, it is alleged petitioner recently found a letter addressed to the baby’s mother, dated approximately nine months prior to the child’s birth, which caused him to be suspicious of her being intimately involved with another male around the time of conception.
Petitioner challenged the acknowledgment of paternity pursuant to Family Court Act § 516-a by filing a cross petition in a support proceeding commenced under article 4 of the Family Court Act. The basis for this special proceeding is that despite petitioner’s requests, both written (cross petition) and oral (counsel’s requests), the Hearing Examiner declined to order DNA testing prior to setting the matter down for trial on the issue of whether or not the paternity acknowledgment was obtained on the basis of material mistake of fact and/or fraud.
Petitioner contends that the ordering of DNA testing is a purely ministerial act mandated upon receipt of the petitioner’s challenge and cites the language of the statute in support: “After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a party’s challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the child’s paternity and shall make a finding of paternity, if appropriate, in accordance with this article” (Family Ct Act § 516-a [b] [emphasis added]). Petitioner contends the verbiage imposes a ministerial act upon the Hearing Examiner such that upon the court’s receipt of a valid challenge based on fraud, duress, or material mistake of fact it must order genetic testing.
Respondent contends the appropriate remedy here is an appeal, not mandamus pursuant to article 78. Since a claimed er
There is a lack of case precedent on this issue and most likely the statute will need to be finally construed by the appellate courts. The judiciary is often challenged with interpreting statutes which may not be clearly worded. Respondent has made some telling arguments which give pause for reflection.
The courts in this State have never been quick to bastardize children, nor to saddle nonparents (absent judicial presumptions found to be in the child’s best interest, such as: res judicata, equitable estoppel, and presumptions of legitimacy) with the concomitant financial obligations which are more properly someone else’s. For these reasons the Legislature has seen fit to impose limitations on authority to order genetic testing in both support and paternity proceedings under the Family Court Act. (See, Family Ct Act §§ 418, 532.)
Specifically, Family Court Act § 439 (b) (proceeding to establish paternity) refers to the language of section 532 (a) for ordering genetic marker and DNA tests: “No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child based on res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.” Similarly, in support proceedings when paternity is contested, Family Court Act § 418 (a) leaves applications for taking blood grouping tests to the sound discretion of Family Court: “The court, on its own motion or motion of any party, when paternity is contested, shall order * * * genetic marker or DNA marker tests * * * No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman.” In these situations blood tests are
Courts, even when faced with a “sufficiently convincing bipod test result,” continue to reject the stance that an order of filiation is unnecessary as a precondition to a support order — referring to such a conclusion as “untenable.” (Clara C. v William L.,
The parties acknowledge the “best interest” limitation is absent from the language of the statutory provision at issue. Nor does Family Court Act § 516-a refer the reader to section 532 which contains the best interest limitation. There is a complete lack of acknowledgment in the statutes for the distinction. Yet, the courts are called upon to carry out the intentions of the Legislature. The language of the statute is unequivocal in its commandment — “the court shall order genetic marker tests or DNA tests for the determination of the child’s paternity” (Family Ct Act § 516-a [b] [emphasis added]) upon receipt of a party’s challenge to an acknowledgment. This commandment is equally applicable where an acknowledgment is being challenged more than 60 days after its signing, regardless of the extremely limited bases upon which it may be challenged — fraud, duress or material mistake of fact — for which the challenger bears the burden of proof.
The function of this court is merely to pass on the merits of the special proceeding, i.e., whether the Hearing Examiner should be ordered to order genetic testing upon receipt of petitioner’s challenge of the acknowledgment, prior to conducting a hearing on fraud, duress, or material mistake of fact. For that reason it would be improper to pass on any merits of the challenge, direct a particular course of action, or speculate as to the conduct of the proceedings yet had. However, contrary to petitioner’s assertions in this special proceeding, section 516-a (b) does not direct an order of paternity consistent with those
It may very well be that the limited bases for challenging the voluntary acknowledgment — fraud, duress, or material mistake of fact — may provide insight into the absence of the “best interests of the child” inquiry prior to ordering genetic testing. Active misrepresentation or wrongdoing on the part of the nonpetitioner may provide justification for the absence of any limitations in this statutory provision. Otherwise the result may be that the deceived party will, yet again, be victimized. There may yet be another aspect which then Family Court Judge Karen K. Peters alluded to when she declined to issue a warrant or confirm a period of incarceration against a respondent for his failure to comply with a support order because he had not been given notice of the filing of a petition for approval of acknowledgments of paternity: “Any acknowledgment of paternity executed pursuant to section 111-k of the Social Services Law, section 516-a of the Family Court Act, and section 33 (5) of the Domestic Relations Law allows a putative father to voluntarily acknowledge his paternity, be registered with the State Putative Father Registry, and be responsible for support in order to avoid the more burdensome, time-consuming, and costly procedure involved in a petition for paternity and order of filiation. However, since it eliminates the stricter, more comprehensive waiver of rights as discussed in Matter of Department of Social Servs. v John M. (
In light of the foregoing the petition is granted insofar as respondent is directed to order genetic marker tests or DNA tests in accordance with Family Court Act § 516-a.