Reid v. White

• Decision Date: 20 January 1982
• Citation: 446 N.Y.S.2d 991,112 Misc.2d 294
• Parties: In the Matter of the Paternity Petition of Andrea D. REID, Petitioner, v. Michael A. WHITE, Respondent.
• Court: New York Family Court

Page 991

446 N.Y.S.2d 991

112 Misc.2d 294

In the Matter of the Paternity Petition of Andrea D. REID, Petitioner, v. Michael A. WHITE, Respondent.

Family Court, Onondaga County.

Jan. 20, 1982.

Kathryn Z. Davies, Asst. Welfare Atty., Syracuse, for petitioner.

Joseph LaFay, Syracuse, for respondent.

DECISION

EDWARD J. McLAUGHLIN, Judge.

The court is confronted with a case of first impression. Respondent herein moved for a human leucocyte antigen blood tissue test (HLA test) pursuant to Article 5 of the Family Court Act in September of 1981. He failed to appear for the test, which was scheduled on December 3, 1981. On the trial date, January 5, 1982, respondent sought an adjournment. Mindful of the ninety day time standard and two adjournment rule set by the Office of Court Administration, the court refused to grant an adjournment. Matter of Richard P., 110 Misc.2d 833, 442 N.Y.S.2d 911 (Fam.Ct.N.Y.Co.1981); Matter of Andre J., 75 A.D.2d 600, 426 N.Y.S.2d 822 (2d Dept. 1980). Petitioner then refused to proceed and demanded a blood test as of right. The court reserved decision.

While the petition was filed by the mother of a child born out of wedlock, petitioner is represented by counsel for the Commissioner of Social Services, since the child for whom a declaration of paternity is sought is on public assistance. Thus, not only the mother and child but the public will be deprived of the costs for supporting the child if the case is dismissed at this time. Accordingly, the court directs that a default judgment be entered against respondent, the disobedient party, pursuant to subparagraph 3 of section 3126 of the CPLR.

LAW

I. PATERNITY PROCEEDINGS ESTABLISH LIABILITY FOR THE SUPPORT OF A CHILD BORN OUT OF WEDLOCK

Prior to 1962, when the Family Court Act was adopted, jurisdiction over actions concerning children born out of wedlock was vested in the Children's Court outside of the City of New York and Special Sessions, a criminal court, within the City of New York. Comment § 511(1) N.Y. Joint Legislative Committee on Court Reorganization, Part II, Family Court. According to the committee notes of the Joint Legislative Committee which prepared the Family Court Act, the purpose of giving the Family Court Act exclusive jurisdiction over paternity proceedings was "to permit the Family Court to draw upon all its resources in protecting and caring for the innocent child of an illicit relation." Id, Comment § 511(2). Article 5 incorporated the provisions of prior law, both criminal and civil. See : Fam.Ct.Act § 524 (issuance of summons); Fam.Ct.Act § 526 (issuance of warrant); Fam.Ct.Act § 531 (respondent shall not be compelled to testify). The fact that the drafters of the legislation considered it a mechanism for providing support for the child born out of wedlock is reiterated throughout the statute. Fam.Ct.Act § 513 (obligations of parents); Fam.Ct.Act § 515 (government obligation to the child); Fam.Ct.Act § 516 (agreement or compromise); Fam.Ct.Act § 522 (persons who may originate proceedings); Fam.Ct.Act § 561 (proceedings to compel support by mother); Fam.Ct.Act § 562 (proceedings to compel support by mother and father); Fam.Ct.Act § 563 (paternity and support proceedings combined).

Prior to the enactment of the Family Court Act it was clear in the case law that a paternity proceeding established the liability of particular persons to provide support for a child born out of wedlock. Commissioner v. Koehler, 284 N.Y. 260, 267, 30 N.E.2d 587 (1940). The Court of Appeals has reiterated this principle many times. See: "H. H. v. I. I.", 31 N.Y.2d 154, 335 N.Y.S.2d 274, 286 N.E.2d 717 (1972); Schaschlo v. Taishoff, 2 N.Y.2d 408, 161 N.Y.S.2d 48, 141 N.E.2d 562 (1957); Commissioner v. Simon, 270 N.Y. 188, 200 N.E. 781, rearg den 271 N.Y. 527, 2 N.E.2d 678 (1936); People ex rel. Lawton v. Snell, 216 N.Y. 527, 111 N.E. 50 (1916); cf. Matter of Malpica-Orsini, 36 N.Y.2d 568, 573, 370 N.Y.S.2d 511, 331 N.E.2d 486 (1975) ap. dis. sub nom. Orsini v. Blasi, 423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 631 (1976). As recently as 1977 an appellate court noted that paternity proceedings are "primarily intended to insure that the child be financially provided for by the putative father and not the State." Salvatore S. v. Anthony S., 58 A.D.2d 867, 868, 396 N.Y.S.2d 872 (2d Dept. 1977), Accord : Kordek v. Wood, 108 Misc.2d 434, 437 N.Y.S.2d 631 (Fam.Ct.Onon.Co.1981); Matter of Nellenback, 107 Misc.2d 1061, 436 N.Y.S.2d 599 (Sur.Ct.Lewis Co. 1981), Czajak v. Vavonese, 104 Misc.2d 601, 428 N.Y.S.2d 986 (Fam.Ct.Onon.Co.1980); Matter of Bertrand, 100 Misc.2d 439, 418 N.Y.S.2d 999 (Fam.Ct.Onon.Co.1979); cf. Goodrich v. Norman, 100 Misc.2d 33, 421 N.Y.S.2d 285 (Fam.Ct.N.Y.Co.1979).

II. BLOOD TESTS

It has long been believed that a charge of paternity is easy to make and difficult to defend against. Burke v. Burpo, 75 Hun. 568, 570, 27 N.Y.S. 684 (1894). In 1981 when the Legislature amended section 532 of the Family Court Act, 1981 Laws of New York, Chapt. 9, so as to allow the results of the HLA test to be received in evidence to aid in the determination of whether the alleged father is or is not the father of a child when he has not been excluded by other blood tests, New York removed much of the uncertainty from paternity proceedings as far as ascertaining the biological father of a child. The importance of the HLA test in contested paternity proceedings has recently been commented upon favorably by the United States Supreme Court in the case of Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), where the court expressed confidence in both the reliability of the tests and favorably cited Mr. Justice Brennan's language in a New Jersey case concerning "the value of blood tests as a wholesome aid in the quest for truth." 101 S.Ct. 2202, 2206. A joint committee of the AMA and ABA recommended the use of the HLA tests in disputed paternity proceedings in a report issued in 1976. Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (Fall 1976). Accepted as an aid to the courts in making determinations of paternity, the weight to be given to the results of an HLA test has not been statutorily determined in New York.

In West Germany, where the HLA test has been admissible for some time, the Essen-Moller formula is used to compute the probability of paternity--a 99% plus probability of paternity "bordering on a certainty;" a 95-99% being very probable paternity," and a 90-95% probability being considered a "weak indication of paternity." S. L. Sass, Defense of Multiple Access (Exceptio Plurium Concubertium) in Paternity Suits: A Comparative Analysis, 51 Tulane L.Rev. 474 (1977). Under 90% is considered meaningless. The German "Federal Supreme Court, with regard to the present stage of biological science, has stated as a guideline that a probability of less than 95% would create substantial doubt." Sass at 477.

Where, as here, no weights are assigned to an HLA finding, it is difficult for the court to access the weight to be given to the absence of blood typing evidence. Ordinarily if no blood test result was put into evidence, the court would consider the evidence set forth and make its decision based upon the clear and convincing evidence. Commissioner v. Hayes, 74 A.D.2d 731, 425 N.Y.S.2d 697 (4th Dept. 1980). Where, as here, the respondent failed to appear for the test he had demanded and petitioner now demands the test to strengthen her case, the remedy to apply is not immediately apparent. For instance, prohibiting the disobedient party from introducing evidence of the blood test results, CPLR 3126(2), or staying the proceeding until respondent takes a blood test, CPLR 3126(3) or dismissing the proceeding, CPLR 3126(3), will not justly remedy respondent's failure to obey the court's order to appear for a blood test in December.

III. STANDARDS AND GOALS

In 1975 the Administrative Board of the Judicial Conference promulgated rules for the New York courts, referred to as "Standards and Goals". These rules were amended effective April 1, 1979. The rules require that a fact-finding hearing be completed within 90 days of the commencement of a proceeding. There is an exception noted for paternity proceedings--"the standard for paternity proceedings shall commence at the time a blood test is ordered." In the instant case the order for a blood test was filed and entered on October 16, 1981. Thus, on January 16, 1982, the petition was 90 days old.

The rules also state that "no more than two adjournments shall be allowed prior to fact-finding unless approved by the designated administrative judge. In this case an adjournment was granted on August 17, 1981, so that respondent could obtain counsel, and on September 10, 1981 when respondent requested a blood test. Respondent's motion for an additional adjournment was denied on January 5, 1982, the date set for trial of this matter.

The rules provide the Family Court with the sanctions of contempt of court proceedings and with dismissal of the proceedings, which may be invoked against any party who unnecessarily delays the court proceedings. A dismissal would inconvenience petitioner, who has cooperated with ...