Jane L. v. Rodney B.
| Decision Date | 15 February 1980 |
| Citation | 103 Misc.2d 9,425 N.Y.S.2d 235 |
| Parties | JANE L, Petitioner, v. RODNEY B, Respondent. |
| Court | New York City Court |
Petitioner in this paternity proceeding is the natural mother. Respondent has denied paternity, and both parties have retained counsel. A standard blood-grouping test, ordered by the court on September 20, 1979 failed to exclude Respondent. Petitioner now moves for a second blood-grouping test, known as the HLA test, on the ground that " Petitioner has not applied to have the results of the test admitted into evidence, but only to have Respondent ordered to submit to the test. Respondent opposes the motion pointing out that,
Family Court Act (hereafter "FCA") Section 532 states that:
The court, on motion of any party shall advise the parties of their right to a blood test and shall order the mother, her child and the alleged father to submit to one or more blood grouping tests * * * to determine whether or not the alleged father can be excluded as being the father of the child . . . ." (emphasis added)
The statute also states that the results of the tests are admissible "only in cases where definite exclusion is established."
Under the statute, then, only two things may be established by the blood test: either that the alleged father is not, in fact, the biological father, or that paternity remains to be determined. The alleged father benefits from the first result, and, to a considerably lesser degree, the mother benefits from the second. Here, the petitioner-mother has already obtained the only benefit to her case the blood test allows: the fact of paternity is still in issue.
It has been argued that the HLA test, with improved testing methodology, can reliably indicate not only a given male's exclusion but also, his inclusion, with approximately 95% accuracy. Matter of Goodrich, 100 Misc.2d 33, 421 N.Y.S.2d 285, Lascaris v. Lardeo, 100 Misc.2d 220, 417 N.Y.S.2d 665, Matter of Harris, supra. Nevertheless the statute, first enacted over forty years ago, allows only evidence of "definite exclusion." A man who is not definitely excluded by the HLA test is virtually certain to be the father, given other credible testimony or evidence of a relationship with the natural mother. Therefore it would appear that what is in fact sought in this motion is evidence that is presently inadmissible that the HLA test indicates that respondent is the actual father. Clearly, a court which is asked to order the HLA test will deduce from a subsequent failure to introduce exclusory results that the alleged father is indeed the father. The issue, then, can be stated: may the petitioning mother compel the respondent alleged father to submit to the HLA test, where the respondent has not been excluded by the standard blood grouping test? For reasons discussed below, the court rules that under the statute as presently enacted she may not.
Although the statute uses the phrase "one or more blood grouping tests" it appears that what was anticipated is the need for a repeated test, where the first is subject to challenge. Thus, where a first test excluding the respondent from paternity had been performed three years before the trial date, the court, in granting the petitioner-mother's motion for a new test, reasonably concluded that ...
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