K.B. v. R.S.

• Citation: 130 N.Y.S.3d 262 (Table),68 Misc.3d 1214 (A)
• Decision Date: 18 August 2020
• Docket Number: XXXXX-19
• Parties: Matter of K.B., Petitioner, v. R.S. and S.S., Respondents.
• Court: New York County Court

68 Misc.3d 1214 (A)

130 N.Y.S.3d 262 (Table)

Matter of K.B., Petitioner,

v.R.S. and S.S., Respondents.

XXXXX-19

Family Court, New York, Onondaga County.

Decided August 18, 2020

Jeffrey DeRoberts, Esq. on behalf of the Petitioner.

David Zukher, Esq. on behalf of the Respondent R.S.; Karen Docter, Esq. on behalf of the child.

Michael L. Hanuszczak, J.

On December 23, 2019, Petitioner K.B. filed a petition seeking to be adjudicated the father of the unborn child of the Mother R.S. (the Mother). An amended petition was subsequently filed on February 6, 2020 including the name of the child as L.R.S., born on XX/XX/2020. The Mother filed a motion to dismiss the paternity petition on February 7, 2020, arguing that the instant petition did not state a claim upon which relief may be granted because she is married and the petition did not establish non-access on the part of her husband. On February 19, 2020, the matter was heard before the Support Magistrate, who referred the case to this Court to address the issues of the presumption of legitimacy based upon the fact that the Mother was married at the time of the child's birth. The Mother's husband, Mr. S.S., appeared before the Support Magistrate on February 19, 2020 and before this Court on March 9, 2020. The Court assigned an Attorney for the Child (AFC) to represent the interests of the child L. on March 9, 2020. After receiving the arguments of counsel, including the Attorney for the Child, this Court denied the motion to dismiss in a written decision on April 28, 2020.

This Court held appearances with counsel via Skype for Business on July 8, 2020 and July 23, 2020. During the July 8, 2020 conference, the Court adjourned the matter to July 23, 2020 to address the issue of equitable estoppel. On the July 23, 2020 date, the Court entertained arguments from counsel concerning equitable estoppel. At that point, the Mother's counsel indicated that he had filed for an interlocutory appeal of this Court's decision denying the Mother's motion to dismiss the petition and was seeking a stay. As of today's date, the Court is unaware that any stay has been granted by the Appellate Division in this matter.

During the July 23, 2020 settlement conference, the Court specifically asked counsel about any potential irreparable harm that would be suffered by the child if genetic marker testing was permitted. The Mother's counsel did not make any specific argument on this point. The Court notes that the Mother has not raised equitable estoppel at all in her filings. The Attorney for the Child argued that the child has lived with Mr. S. (the Mother's husband) all of his life and knows Mr. S. as his father. Mr. B.'s counsel asserted that no hearing was required and that any further delay would further prejudice his client. The Court indicated that it would issue a written decision on whether a hearing was required and whether a genetic marker test would be ordered in this matter.

Family Court Act § 532 provides that the Court "shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests" on its own motion or the motion of any party ( § 532(a) ). The statute further states that "no 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 women" (Id. ). The Court, after a review of the pleadings and based upon the arguments of counsel, finds in this matter that it is in the best interests of the child to order a genetic marker test. Under the unique circumstances of this case, no hearing is warranted (Matter of Marilene S. v. David H., 85 AD3d 1035 [2nd Dept 2011] ).

The Court has considered whether the Mother's marriage to Mr. S. is a bar to a genetic market test in this case. The Court notes the statute "does not impose a blanket prohibition on genetic testing whenever the presumption of legitimacy is found to apply" ( Matter of Mario WW v. Kristin XX, 173 AD3d 1392 [3rd Dept 2019] ). Once Mr. B. made sufficient allegations that a nonfrivolous controversy exists as to paternity, the burden shifted to the Mother to demonstrate "why testing would not be in the [child's] best interests, and she can not simply rely upon the presumption of legitimacy" (Matter of Gutierrez v. Gutierrez-Delgado, 33 AD3d 1133 [3rd Dept 2006] ). The Mother must show more than just that the presumption applies, "but also that, given the entirety of the circumstances, including the applicability of the presumption, such testing will not serve the best interest of the child" ( Prowda v. Wilner, 217 AD2d 287 [3rd Dept 1995] ). The Mother has not made such a showing.

In reviewing whether the marital presumption should preclude genetic testing, the Court has considered the following factors: "the child's interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing" ( Matter of Mario WW v. Kristin XX, 149 AD3d 1227 [3rd Dept 2017] ). The Court has also considered the husband's relationship with the child, any potential trauma to the child from identifying someone else as the father of the child and "the very real disruption to the stability of the child's existing family that would result" ( Matter of Christopher YY v. Jessica ZZ, 159 AD3d 18 [3rd Dept 2018] ).

In this case, Mr. B. filed the paternity petition before the child was born ( Family Court Act § 517 ), which put all parties on notice that he was claiming to be the father of the child. The Court finds that, with respect to the first factor, the child "certainly has an interest in knowing the identity of her biological father" ( Matter of Anthony M., 271 AD2d 709 [3rd Dept 2000] ). Given that the child is currently seven (7) months old and that the petition was filed before her birth, the Court finds that any genetic market testing would not be traumatic to the child. The Court has also considered that continued uncertainty could have a traumatic effect on the child, particularly as the child grows older. A determination at this age is in the best interests of the child.

The Court has additionally considered whether testing would disrupt an intact family unit in this case. Initially, the Court notes that since the petition was filed before the child's birth, any bonding between the child and Mr. S. that has occurred was created by the Mother, despite knowledge of Mr. B.'s petition. Accordingly, any lack of involvement with the child on the part of Mr. B. is due to the Mother's actions, not due to any lack of effort on the part of Mr. B. While the Court does recognize the possibility that genetic marker testing in this case could upset the current living situation of the child, the Court finds that the child's interest in knowing the identity of her father outweighs that concern, especially given the fact that the child is under a year old. The Court additionally notes that if Mr. B. is the father of the child, any further delay would significantly impact his ability to form a relationship with the child. Accordingly, the Court finds that the marital presumption does not preclude a genetic marker test in this case.This case can be distinguished from Matter of Tracy C.O. v. Douglas A.F., because in that case, the petition was not filed until the child was almost eight years old ( 66 AD3d 1390 [4th Dept 2009] ). Additionally, an Attorney for the Child has been assigned in this matter and the Court here has considered the specific...