New York Family Law Blog
A man filed a verified petition seeking an order of the court vacating an order of filiation entered upon his admission. He had appeared before Hearing Examiner and admitted that he was the biological father of a boy who was born out of wedlock on January 25, 1988. A New York Family Lawyer said in support of his present application, the man asserts that he has obtained a DNA test to exclude him as the father.
After answering papers were filed by the child’s assigned Law Guardian and the County Attorney on behalf of the mother and the Suffolk County Department of Social Services (DSS), the issue of the admissibility and weight to be given to this privately arranged DNA paternity test was placed squarely before the court.
The DNA test which is the driving force behind this litigation was performed under unusual circumstances. In early January of 1999 the man telephoned a nationally syndicated television talk show called. He offered to provide a DNA sample and appear as a guest to argue that he was not the boy’s father. A representative of the show then telephoned the mother. A New York Custody Lawyer said she was equally convinced that DNA results would show that the man was the father; she agreed to provide samples of her own and the boy’s DNA. The mother’s decision was a necessary foundation for the upcoming show and eventually for this litigation.
Samples were collected and comparison testing was promptly completed by a Diagnostics clinic in time for the videotaping of the show. The man appeared at the studio; the mother testified that she did not appear because her son said he would be embarrassed if she did. Therefore, there was no guest to argue against the man. He acknowledged that he had avoided paying over $28,000 in child support that was due to DSS in compensation for that agency’s support of the mother and the boy. He told the audience that he supported his wife and legitimate children, and would support the boy if he were the father. In a mocking manner, he described the boy having an appearance that was totally different from himself, the mother, or any member of either of their families. A Nassau County Family Lawyer said that he confidently stated he was not the father. His position was supported by the show’s paternity expert. When the show’s host asked the paternity expert what the man should say to the Judge, the paternity expert responded to tell the Judge that he is not the father. The crowd cheered.
When the paternity expert stated his opinion on television, he officiously referred to a document that he held in his hand. A Nassau County Custody Lawyer said at the in the courtroom proceeding, efforts were made to support his opinion with a document certifying that the laboratory is certified by the State of New York to do paternity testing. It goes on to certify the accuracy of the test result that eliminates the man as the boy’s father.
The man’s attorney has offered the certification and the attached result into evidence pursuant to the automatic admissibility rules. The County Attorney opposes its consideration by the court. All parties agree that the laboratory is one of a limited number that are approved for such type of testing by the New York State Department of Health (DOH). Additionally, they agree that there is no statutory bar to the consideration of the test results on account of res judicata, the presumption of legitimacy or equitable estoppel. These barriers, which are set forth in Family Court Act, protect children from the emotional havoc of inappropriate court-ordered paternity tests in certain circumstances. Since the man and the mother were never married, there is no presumption of legitimacy. Even though they live in the same neighborhood and the boy bears his mother’s last name, all parties agree that the boy has never developed a relationship with his father; therefore, there is no estoppel issue. In light of the mother’s reopening the paternity issue by providing DNA samples, no one has raised res judicata.
The County Attorney, however, correctly pointed out that the laboratory director’s certification was invalid for automatic admissibility because the test was not court ordered. The County further contended that it was prepared solely for a television show and was nothing more than a stage prop.
The County argued that these defects should end this litigation. The man’s attorney responded that the lack of a court order was merely a technical defect and asked to be permitted to prove the correctness of the test result stated in the certification. The request was granted. A hearing has been conducted because of the serious effect the document has had in revitalizing the paternity dispute and a sense that it was worthy of some judicial consideration because it was prepared by a DOH-authorized laboratory.
At the outset, the man’s counsel was instructed that the result stated in this particular certification would not be automatically accepted into evidence. He would have to call witnesses to explain the procedures that were followed in order to demonstrate by clear and convincing evidence what, if any, evidentiary value should be given to this particular DNA test.
In paternity proceedings in which genetic marker or DNA testing is conducted pursuant to a court order, the process of admissibility presumes compliance with the numerous requirements and standards set forth in Public Health Law and the regulations enacted thereupon. Admissibility is a given so long as the test was properly ordered by the court, performed by an authorized laboratory, and documented on a Civil Practice Laws and Rules certification. High probative value is assigned to the stated results.
In criminal proceedings, forensic DNA testing is similarly regulated by statutes, including Executive Law and a substantial body of case law. There is even a relatively recent provision that establishes procedures and standards that the courts must apply to applications to conduct new DNA testing as part of the process of moving to vacate a judgment of conviction. Presently, there are no statutory provisions that structure an equivalent procedure to apply to an application for testing in the context of a motion to set aside or abrogate a finding of paternity. There are other significant differences. In criminal cases, there are no automatic admissibility provisions for the trial setting and statutory evidentiary presumptions that are peculiar to Family Court paternity proceedings. In spite of these and other differences, there remains a common thread of strict testing standards that must be met in civil and criminal litigation. Hence, the State has rules and regulations which govern the licensing of forensic and paternity laboratories, the manner in which DNA specimens are collected, the storage of specimens, the analysis of data, and the like; this is all to insure that the highly probative results are reliable.
The evidence does show that the Diagnostics clinic took no part in the use of their kits, gathering of samples, or the delivery of specimens. Instead, they sent a supply to the paternity expert at his unlicensed business. During his testimony, the paternity expert emphasized that his enterprise is an office, not a laboratory. He described his role as one of a broker. He maintains a stock of the Diagnostics clinic’s paternity kits in his office and receives a fee in return for distributing them. It is an over the counter operation; the customer does not need a prescription or court order to pick up their do it yourself DNA paternity kit. They then place whatever specimens they want in the containers, place a name and signature on each label and send them back to the laboratory to be tested. This is essentially what happened in this case.
On or about January 7, 1999, the paternity expert received a phone call from a person he had been dealing with for some time, the producer of a Show. She placed an order for paternity kits to be completed within six days; the tight schedule had to be met so that DNA results could be ready for the videotaping of the show on January 13, 1999.
Because time was limited the paternity expert elected to prepare kits for testing by the quicker “PCR” method, rather than the slower “RFLP” technique. He was unable to recall what the letters “RFLP” and “PCR” represented. RFLP refers to restriction fragment length polymorphism and PCR refers to polymerase chain reaction. Efforts to have him explain all of the differences between these two methods resulted in his telling the court that they were really the same and one was just faster than the other. These statements fly in the face of the scientific explanations that have been provided in two significant forensic DNA cases in the State of New York. The fact that PCR testing begins with smaller amounts of DNA that must be copied before comparison testing can begin. The Court of Appeals has not yet ruled on the acceptability of PCR. It is understandable that the paternity expert was not aware of the legal developments regarding these two types of tests, but as a self-proclaimed expert, he should have had some knowledge of the very different steps that each involves.
In the end, the paternity expert acknowledged that his expertise is credentialed by a 1959 Bachelor of Science degree in Biology. He has no formal training in DNA; his knowledge in this area is based upon a meeting he had with the director of a private laboratory. Unfortunately, no testimony was offered as to the producer/DNA instructor’s knowledge and technical abilities.
The relevant statutes, regulations, and court decisions convey a clear message that DNA testing should not be frivolously employed in litigation. In this case, the testing was done for frivolous entertainment purposes and has little or no legal value. It is not probative on the issue of identification of the father; it is not clear and convincing evidence of anything other than an ongoing paternity dispute.
At the same time, it is not practical to simply ignore all that has resulted from the man’s call to the television show and the mother’s poor judgment in reopening the paternity debate. Rejection of the test, without more, may not be in the best interests of the child. The questions and bitterness must end. The man’s desire to retract his 1991 admission has ripened into a willingness to totally disregard court orders, accumulate large child support arrears, risk incarceration, and appear on national television. There is no purpose served by sending the parties off, only to return by a different procedural gambit. Undoubtedly, they will be back. The man’s child support problems have taken on new significance. He is now employed on the books and, for the first time, DSS is recouping funds that they have spent to raise the child. Because of the amount that is due, a willful violation proceeding could result in incarceration with a substantial purge figure.
Under these circumstances, the court is constrained to order that the parties submit to DNA testing that is to take place in strict compliance with the existing laws and regulations.
The cost will be borne by the man in accord with Family Court Act. It is his change of heart that makes the test necessary. The offer by the Show to pay for the test must be rejected because of potential conflicts with the payment provisions set forth in the Public Health Law.
The man, the mother and the boy are directed to provide samples for DNA testing, to be conducted by a Laboratory. Samples are to be collected at the facility that the Laboratory maintains for this purpose on a date certain set forth in the separate order of the court.
The issue of paternity is not a joke. If the father neglected his child and makes fun of his being the father, a Suffolk County Child Support Attorney together with the Suffolk County Family Lawyer can help you and your child pursue a legal action. The Suffolk County Abuse and Neglect Attorney from Stephen Bilkis and Associates can also assist you in your case.