Barbara A. v. Gerard J.

• Decision Date: 26 March 1990
• Citation: 553 N.Y.S.2d 638,146 Misc.2d 1001
• Parties: In the Matter of a Paternity Proceeding * BARBARA A., Petitioner, v. GERARD J., Respondent.
• Court: New York Family Court

Page 638

553 N.Y.S.2d 638

146 Misc.2d 1001

In the Matter of a Paternity Proceeding ^* BARBARA A., Petitioner, v. GERARD J., Respondent.

Family Court, City of New York Queens County.

March 26, 1990.

John C. Groarke, Maspeth, for petitioner.

George Alteros, Brooklyn, for respondent.

Seymour Zager, Flushing, law guardian.

JOSEPH L. TORRES, Judge:

By motion dated September 30, 1989, the putative father seeks to vacate an order of filiation entered by this court on consent on December 14, 1987. The mother has cross-moved to dismiss the father's petition claiming that, under the facts and circumstances present here, the father is estopped from relitigating the issue of paternity.

The law guardian, appointed to represent the child, recommends that the parties and the child be ordered to submit to a composite human leucocyte antigen (HLA) blood test or a new deoxyribonucleic acid (DNA) genetic test and the matter tried.

Based upon the parties' and the law guardian's motion papers and upon all the prior proceedings herein, the parties' separate motions are resolved as follows.

The parties were married in Queens County, New York in 1972 and divorced (pursuant to a legal separation) in the same county in 1978. There is no issue of that marriage

In July 1980, the parties began "dating" and the mother became pregnant. The father moved in and began living with the mother in February 1981. The child, Christopher, was born in May 1981. The father ultimately moved out of the mother's home in October 1983 and voluntarily began paying the mother $62.50 per week as support for the child.

The mother filed a paternity petition with this court and an order of filiation was entered on December 14, 1987 upon the father's admission of paternity. Before his admission was accepted, the court apprised the father of: (1) his right to counsel and the free assignment of counsel if he could not afford legal representation; (2) his right to two blood tests including a composite HLA blood-grouping test which would be provided free of cost to him if he could not afford the test; and (3) his right to remain silent on the issue of paternity.

Subsequently, on December 14, 1987, an order of support was entered by a Hearing Examiner which required the father to pay $170 bi-weekly for the support of the child. On January 12, 1988, the father filed specific written objections to the Hearing Examiner's order. The father never raised the issue of paternity in his written objections, but wrote therein "I was under the impression that I was going to court to state I was the father of Christopher. I had no objection to stating that, since he is my son ..."

On May 24, 1989, the father filed a petition for downward modification of support on the grounds that his monthly rent had increased. He failed to raise the issue of paternity in that matter.

For reasons not disclosed on the record, the mother agreed to submit herself and the child to a privately arranged DNA genetic test. Blood samples were drawn from the mother, father and child by an independent laboratory in Manhattan on September 9, 1988. The laboratory immediately gave the blood samples to the father in order for him to transport them by car to the Lifecodes Corporation in Valhalla New York. The father's transportation of the blood samples from the laboratory in Manhattan to the Lifecodes Corporation took place without any supervision. In his supporting papers, the father swears that he transported the blood samples, in his own car, neither tampering with the samples nor contaminating them. Lifecodes Corporation reported on October 19, 1988 that the DNA testing of the samples revealed that the child was not the father's issue.

The child knows no one but this father as his father.

Two questions are presented here: (1) what effect, if any, shall be given to the privately arranged DNA test of September 19, 1988; and (2) assuming that no affect can be given that test, is the ordering of new HLA or DNA test of the child and the parties required? For the reason set out below, this court gives no effect to the privately arranged DNA test and finds that there is no need for new tests to be ordered.

New York law does not prohibit the admission of DNA testing into evidence in civil matters simply because the testing was not conducted under court order. (See C.P.L.R. 4518; Matter of Oliver v. England, 48 Misc.2d 335, 264 N.Y.S.2d 999 [Family Ct.1965]; Lory v. Lory, 119 Misc.2d 205, 462 N.Y.S.2d 744 [N.Y.Sup.1983]; Moore v. Murray, 63 Misc.2d 401, 311 N.Y.S.2d 794 [Family Ct.1969]. The results of such privately arranged testing may be admitted into evidence upon consent of both parties or upon a notice or motion to admit (C.P.L.R. 3123) or, at trial, if it meets evidentiary criteria. (Richardson, Evidence § 4 at p. 2 [Prince 10 ed.].

In matters of paternity, Family Court Act § 532 empowers this court to order composite HLA or DNA testing of the child and the purported parents at the request of either party or in its judicial discretion. The court may allocate the cost of such testing among the parties. (Family Court Act § 532(c)). The results of such testing may be received into evidence at trial.

[C.P.L.R. 4518; Family Court Act § 532].

HLA testing has undergone considerable litigation. (See eg. Sandra C. v. Thomas J.S., 100 A.D.2d 119, 474 N.Y.S.2d 322 [Second Dept. 1984]; (Linda K.L. v. Roberts, 109 Misc.2d 628, 440 N.Y.S.2d 825 [N.Y.City Family Ct.1981]. While the results of such court-ordered testing are not conclusive evidence of paternity, it is clear in the case of HLA testing that the results must be accorded great weight. (Bowling on Behalf of Morgan v. Coney, 91 A.D.2d 1195, 459 N.Y.S.2d 183 [Fourth Dept. 1983]; Nassar on Behalf of Brosemer v. Lake, 124 Misc.2d 248, 476 N.Y.S.2d 248 [Family Ct.1984]. Indeed, it has been the experience of this court, that as a practical matter, the result of the court-ordered HLA testing are virtually determinative of the paternity issue in most cases.

DNA testing stands on somewhat different footing. DNA genetic testing theory is generally accepted as reliable by the scientific community. But laboratory procedure and lack of uniform criteria connected with DNA testing--including the manner in which the samples are obtained--have made suspect the validity of the results to the point where the results of such testing have been excluded as evidence as a matter of law. (People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 [1989].

New York courts may exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, undue delay or waste of time. (People v. Harris, 209 N.Y. 70, 102 N.E. 546; Radosh v. Shipstad, 20 N.Y.2d 504, 285 N.Y.S.2d 60, 231 N.E.2d 759 [1967]; Richardson, Evidence § 147 at p. 117 [Prince 10 ed.].

In the case presently before the court, the transportation of the blood samples by the father--a party here with obvious personal and economic interests at stake--without the supervision and control by either the Manhattan laboratory or Lifecodes Corporation has tainted irreparably the parties'...