Mario WW. v. Kristin XX.

• Decision Date: 06 April 2017
• Citation: 149 A.D.3d 1227,51 N.Y.S.3d 678
• Parties: In the Matter of MARIO WW., Appellant, v. KRISTIN XX., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1227
51 N.Y.S.3d 678

In the Matter of MARIO WW., Appellant,
v.
KRISTIN XX., et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

April 6, 2017.

51 N.Y.S.3d 678

Lenore M. Lefevre, Cortland, for appellant.

Susan Kirby, Ithaca, for respondents.

Andrea J. Mooney, Ithaca, attorney for the child.

Before: McCARTHY, J.P., GARRY, ROSE, MULVEY and AARONS, JJ.

GARRY, J.

Appeal from an amended order of the Family Court of Tompkins County (Rowley, J.), entered September 17, 2015, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 5, to adjudicate petitioner as the father of a child born to respondent Kristin XX.

Respondents, Kristin XX. (hereinafter the mother) and Brad XX. (hereinafter the husband), were married in 2009 and have resided together since then. Shortly after the mother gave birth to a child in 2014,

51 N.Y.S.3d 679

petitioner commenced this paternity proceeding alleging that he is the child's biological father. The petition requested an order for genetic testing, which respondents opposed on the grounds that the husband was presumed to be the child's father and that genetic testing would not be in the child's best interests. Respondents moved to dismiss the petition. Following a hearing, Family Court granted respondents' motion and dismissed the petition based solely upon the presumption of legitimacy, without making a determination as to whether genetic testing would be in the child's best interests. Petitioner appeals.

A court's "paramount concern" in a paternity proceeding is the child's best interests (Matter of Kristen D. v. Stephen D., 280 A.D.2d 717, 719, 719 N.Y.S.2d 771 [2001] ; see Matter of Ettore I. v. Angela D., 127 A.D.2d 6, 14, 513 N.Y.S.2d 733 [1987] ). The governing statute provides that an application for genetic testing shall be denied when a court makes a written finding that testing "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" (Family Ct. Act § 532[a] ; see Family Ct. Act § 418[a] ). We agree with petitioner that, as he made the requisite threshold showing of "a nonfrivolous controversy as to paternity" (Prowda v. Wilner, 217 A.D.2d 287, 289, 634 N.Y.S.2d 866 [1995] ), his request for genetic testing should not have been denied in the absence of a best interests finding.

In enacting the statutory provisions, the Legislature plainly anticipated that cases involving the presumption of legitimacy may present themselves in which, based upon all of the circumstances, it will not be in a child's best interests to order genetic testing (see id. at 290, 634 N.Y.S.2d 866 ).¹ Although respondents ask us to find that this is such a case, we are unable to exercise our broad power of review to render the...