Edward K. v. Marcy R.

• Decision Date: 10 December 1980
• Parties: In the Matter of the Paternity Petition of EDWARD K., Petitioner, v. MARCY R., and Gary R., Respondents.
• Court: New York Family Court

Page 108

434 N.Y.S.2d 108

106 Misc.2d 506

In the Matter of the Paternity Petition of EDWARD K., Petitioner, v. MARCY R., and Gary R., Respondents.

Family Court, Kings County.

Dec. 10, 1980.

Jacoby & Myers, Brooklyn, Gregory Messer, Brooklyn, of counsel, for petitioner.

Levin & Weissman, P. C., New York City, Susan D. Bauer, New York City, of counsel, for respondents.

DECISION AND ORDER

RICHARD D. HUTTNER, Judge:

The petitioner in this proceeding seeks an order declaring his paternity of C.A.R. born June 23, 1978, and M.J.R. born July 14, 1980, and names as respondents, the mother of the children and her husband. The respondents were married on September 25, 1977, and since that date have lived together continuously as husband and wife. The parties and children submitted to the standard Landsteiner blood grouping test, which failed to exclude either the petitioner or the respondent, husband, as father of the children.

The court has before it petitioner's motion for a second blood test, and respondent's cross-motion for a dismissal of the petition.

The petition, which was not prepared on the official court form, simply requests that petitioner be adjudicated the children's natural father, and there is no request, as is contained in the official court form, to support the children. Therefore, the sole relief prayed for in this petition, is in the nature of a declaratory judgment, as to the status of the children's paternity. The family court, being a court of limited jurisdiction, is without power to entertain actions for declaratory judgments. Loeb v. Loeb, 14 A.D.2d 270, 220 N.Y.S.2d 579. The proper forum for such relief is the supreme court. Salvatore S. v. Anthony S., 58 A.D.2d 867, 396 N.Y.S.2d 872 (2nd Dept. 1977); citing Commissioner of Public Welfare v. Koehler, 284 N.Y. 260, 30 N.E.2d 587; Alvin B. v. Denise C., 85 Misc.2d 413, 380 N.Y.S.2d 601; Czajaks v. Vavonese, 104 Misc.2d 601, 428 N.Y.S.2d 986.

A filiation proceeding in the family court is a statutory device created principally to "... resolve problems of support." Report of Joint Legislative Committee on Court Reorganization, No. 2-The Family Court Act, 2 McKinney's 1962 N.Y.Session Laws 3446. Historically, paternity proceedings were aimed at protecting "... the welfare of the child and providing indemnification...". Schaschlo v. Taishoff, 2 N.Y.2d 408, 161 N.Y.S.2d 48, 141 N.E.2d 562 (1957); Matter of J. Children, 50 A.D.2d 890, 377 N.Y.S.2d 530 (2nd Dept. 1975); Matter of Kehn v. Mainella, 40 Misc.2d 55, 242 N.Y.S.2d 732. The failure of the petitioner to request an order of support places the action outside the family court's limited paternity jurisdiction.

The petitioner is requesting a court order directing that the parties submit to a second, more sophisticated blood test, to wit a Human Leukocyte Antigin (HLA) Test. It is petitioner's contention that this test, because of its higher degree of accuracy, will exclude the mother's husband as being the biological father of the children. Such proof would help overcome one of the strongest presumptions known to our law, that of the legitimacy of children born to married parents. Matter of Findlay, 253 N.Y. 1, 170 N.E. 471; Gray v. Rose, 32 A.D.2d 994, 302 N.Y.S.2d 185 (3rd Dept. 1969).

In the absence of a consent by the parties, additional blood tests in paternity proceedings may be ordered only if in the court's discretion the interest of justice will be furthered. Moore v. Astor, 102 Misc.2d 472, 423 N.Y.S.2d 1010; Lascaris v. Lardeo, 100 Misc.2d 220; Carol B. v. Felder R. J., 94 Misc.2d 1015, 406 N.Y.S.2d 668; Jane L. v. Rodney B., 103 Misc.2d 9, 425 N.Y.S.2d 235. The petitioner's desire to utilize the results of any blood test to exclude the mother's husband as the father runs counter to the express provisions of Family Court Act § 532. This statute provides clearly that blood tests may be admitted in evidence solely to exclude the "alleged father." In this case, the respondent husband is not alleged in the petition to be the father of the children, therefore, any blood test results with regard to the respondent husband would be statutorily inadmissible. Accordingly, there is no interest of justice which can be served by ordering further blood tests.

In an effort to overcome the restrictions contained in Family Court Act § 532, petitioner further requests that the additional blood test be ordered instead pursuant to CPLR § 3121, which provides inter alia: "... any party may serve notice on another party to submit to a ... blood examination...". Family Court Act § 165 subd. (a) precludes the use of the CPLR in this court when there is a suitable procedure provided for in the Family Court Act, thus leaving this court powerless to make such an order.

It is this court's opinion that the petitioner may find both substantive and procedural relief in the supreme court that is unavailable to him in this court, since the supreme court has jurisdiction to render a declaratory judgment with respect to the children's paternity. Salvatore S. v. Anthony S., supra; Swanson v. Karner, 77 A.D.2d 811, 430 N.Y.S.2d 763.

It is this court's further opinion that the aforesaid...