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In Johnson, a husband filed a complaint in July 1992 seekinga divorce from the mother and temporary custody of a minor child born during the marriage.
Summary of this case from Jeffries v. MooreOpinion
No. 9411DC552
Filed 5 September 1995
1. Evidence and Witnesses § 1920 (NCI4th); Illegitimate Children § 7 (NCI4th) — blood grouping tests — standing of defendant to request The putative father of a child born to defendant mother during her marriage to plaintiff was an "interested party" within the meaning of N.C.G.S. § 8-50.1(b) and as such could move the trial court to order blood grouping tests to establish or disprove parentage, since the mother filed a separate action against the putative father to compel him to submit to blood grouping test; her action was consolidated with plaintiff husband's original action against the mother for temporary custody of the minor child; and the putative father filed an acknowledgment of paternity.
Am Jur 2d, Illegitimate Children § 27.
Admissibility and weight of blood-grouping tests in disputed paternity cases.. 43 ALR4th 579.
Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights. 87 ALR4th 572.
2. Illegitimate Children § 7 (NCI4th) — presumption of legitimacy of child — blood grouping tests admissible to rebut presumption. When the question of paternity arises,, N.C.G.S. § 8-50.1 allows the results of blood grouping tests to be used to rebut any presumptions of paternity in both criminal and civil actions. In this case, the putative father, who is now married to the mother, presented other facts and circumstances sufficient to question the presumption that the child in question, though born during the mother's marriage to plaintiff, was legitimate, where the putative father and the mother both filed acknowledgments of paternity of the minor child; while plaintiff husband was absent in Saudi Arabia for a six-month period ending 15 March 1991, the mother had intercourse with the putative father on numerous occasions; the mother did not have intercourse with anyone else during that period; when plaintiff husband returned 15 March 1991, he and the mother had intercourse on at least one occasion; the husband and the mother had been trying unsuccessfully to conceive a child for at least one year prior to the husband's leaving for Saudi Arabia; and the mother learned she was pregnant in early April 1991.
Am Jur 2d,, Illegitimate Children § 27..
Admissibility and weight of blood-grouping tests in disputed paternity cases. 43 ALR4th 579.
Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights. 87 ALR4th 572.
3. Evidence and Witnesses § 1920 (NCI4th); Illegitimate Children § 7 (NCI4th) — "alleged parent defendant" — applicability to presumed father-husband — husband compelled to submit to blood grouping tests The term "alleged parent defendant" may apply to a presumed father-husband as well as a third party putative father; therefore, plaintiff husband could be compelled to submit to blood grouping tests under N.C.G.S. § 8-50.1(b), as he was the named defendant in the mother's counterclaim and in the paramour's crossclaim, and the husband alleged in his own complaint that he was the parent of the child.
Am Jur 2d, Illegitimate Children § 27.
Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights. 87 ALR4th 572.
4. Divorce and Separation § 350 (NCI4th) — custody action — blood grouping tests to determine paternity — best interests of child served by test In the context of a proceeding to award custody of a minor child, an order compelling the parties to submit to blood grouping and DNA testing to determine paternity will best promote the interests and welfare of the child.
Am Jur 2d,, Divorce and Separation § 974.
Right of putative father to custody of illegitimate child. 45 ALR3d 216.
Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights. 87 ALR4th 572.
Appeal by plaintiff Sammy Roger Johnson, Jr., from order entered 19 January 1994 by Judge Franklin F. Lanier in Johnston County District Court. Heard in the Court of Appeals 21 February 1995.
Mast, Morris, Schulz Mast, P.A., by George B. Mast, Bradley N. Schulz and Christi C. Stem, for plaintiff-appellant.
Edward P. Hausle, P.A., by Edward P. Hausle, for defendant-appellee Meehan.
Judge Walker dissenting.
Plaintiff Sammy Roger Johnson (hereinafter Mr. Johnson) appeals from an order granting defendant Thomas C. Meehan's motion to compel Mr. Johnson to submit to blood-grouping and DNA testing pursuant to G.S. 8-50.1. Mr. Johnson and defendant Lisa McGhee Johnson (hereinafter Mrs. Meehan) were married on 22 October 1988. On 1 December 1991, Mrs. Meehan gave birth to a baby girl, Samantha Renee Johnson. Samantha's birth certificate listed Mr. Johnson and Mrs. Meehan as parents.
The parties were separated on 8 August 1992. On 6 July 1992, Mr. Johnson filed a complaint seeking divorce from bed and board and temporary custody of the minor child. Mrs. Meehan answered and counterclaimed for child custody, support and paternity determination. Mrs. Meehan alleged that Mr. Johnson was not the natural father of the minor child and requested the trial court to order Mr. Johnson, Mrs. Meehan and the minor child to submit to blood testing pursuant to G.S. 8-50.1(b) for the purpose of establishing or disproving parentage.
On 27 August 1992, Mrs. Meehan filed a separate action against Thomas C. Meehan alleging that defendant Meehan was the father of her minor child and moved for an order that defendant Meehan, the minor child and Mrs. Meehan submit to blood group testing pursuant to G.S. 8-50.1(b). On 31 August 1992, Mr. Meehan filed an Acknowledgment of Paternity, alleging that he was the natural, biological father of Samantha Renee Johnson. On 9 October 1992, Mrs. Meehan moved the court to require Mr. Johnson to submit to blood-grouping testing pursuant to G.S. 8-50.1.
On 7 October 1992, the trial court consolidated Mr. Johnson's original action and Mrs. Meehan's action for blood testing. On 22 October 1992, the trial court entered an order denying Mrs. Meehan's motion to order Mr. Johnson to submit to blood-grouping testing pursuant to G.S. 8-50.1(b). Although Mr. Meehan was a party to the action prior to the hearing on Mrs. Meehan's motion, Mr. Meehan was not served by either party and did not attend the hearing or present evidence. On 19 November 1992, pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure, Mr. Meehan moved for a new trial and relief from the 22 October 1992 Order. On 10 November 1993, the trial court granted Mr. Meehan's motion for a new trial and relief from the 22 October 1992 Order.
On 19 January 1994, the trial court entered the following order compelling all parties, including Mr. Johnson, to submit to blood-grouping and DNA testing pursuant to G.S. 8-50.1:
FINDINGS OF FACT
. . . .
5. In addition to the issues of custody and support of Samantha Johnson, this action involves the issue of paternity in that Thomas C. Meehan and Lisa McGhee Johnson (Meehan) contend that Thomas C. Meehan is the biological father of the child. Sammy Roger Johnson contends that he is the biological father of the child. The paternity issue is pending for later determination.
6. Sammy Roger Johnson, Jr. filed an action for, among other things, child custody, against Mrs. Meehan on July 6, 1992. Thereafter, on August 3, 1992, Mrs. Meehan filed an Answer and Counterclaim against Mr. Johnson. In her Counterclaim, Mrs. Meehan asserted a claim for custody and a claim requesting the court to determine the paternity of Samantha Renee Johnson. On August 17, 1992, Mrs. Meehan filed a separate action in file number 92 CVD 1631, for a determination of the paternity of Samantha Renee Johnson. The two cases (92 CVD 1258 and 92 CVD 1631) were consolidated by Order of this court on October 7, 1992, making Mr. Meehan a party to both actions. Mr. Meehan filed a Crossclaim against Mr. Johnson for a determination of paternity.
7. On 21 October 1992, a hearing was held on Lisa McGhee Johnson's Motion for Blood Testing and/or Physical Examination. The Honorable O. Henry Willis, Jr. entered an order denying this motion.
8. Although Mr. Meehan was a party to this action prior to the hearing on 21 October 1992, he was not served by either Sammy Roger Johnson, Jr. or Lisa McGhee Johnson or their attorneys with notice of the hearing held on 21 October 1992. Mr. Meehan did not attend the hearing or present any evidence and was not represented by counsel at the hearing. On or about 10 November 1993, an Order was entered by the undersigned granting Thomas Meehan's Motion for New Trial.
9. Sammy Roger Johnson was out of the United States in Saudi Arabia for a six (6) month period ending on 15 March 1991. During February 1991, Lisa Johnson (Meehan) had sexual intercourse with Thomas Meehan approximately twenty (20) times. Lisa testified that in February 1991, she did not have sexual intercourse with anyone other than Thomas Meehan. From 1 March 1991 until 15 March 1991, Lisa Johnson Meehan had sexual intercourse with Thomas Meehan approximately ten (10) times. From 1 March 1991 until 15 March 1993, Lisa Johnson (Meehan) did not have sexual intercourse with anyone other than Thomas Meehan.
10. Sammy Roger Johnson returned to the United States on 15 March 1991 and he and Lisa Johnson (Meehan) had sexual intercourse at least one time on this occasion.
11. Lisa Johnson (Meehan) and Thomas Meehan testified that they have married and have a daughter named Amanda Meehan, born 5 August 1993, who is the sister of the child Samantha Johnson. Amanda was born twelve months after Mr. Johnson and Mrs. Meehan separated from one another. Sammy Johnson testified that he is not the father of Amanda Meehan. However, Sammy Roger Johnson's name appears on Amanda Meehan's birth certificate, since he was still married to Lisa Johnson on Amanda's date of birth.
12. On or about 7 March 1992, Lisa Johnson (Meehan) told Sammy Roger Johnson that she had an affair with Thomas Meehan and that Sammy Roger Johnson was not the biological father of Samantha Renee Johnson.
13. Sammy Roger Johnson testified that Mrs. Meehan told him that he was not the biological father of Samantha Renee Johnson, but that she did not know who was the biological father.
14. Mrs. Meehan and Mr. Meehan have both submitted to blood and DNA testing in September 1992. The results of these tests were offered into evidence by Mr. Meehan at this hearing, but were not admitted into evidence by the court, and were neither available or ready at the time this court heard Mrs. Meehan's Motion for Blood Testing and/or Physical Examination on October 7, 1992, in File Number 92 CVD 1258.
15. For a period of at least one (1) year before Sammy Roger Johnson left for Saudi Arabia, he and Lisa Johnson (Meehan) had sexual intercourse without any contraception and had not conceived. The question of their ability to conceive and have a child arose before Sammy Johnson left for Saudi Arabia and he went for infertility testing to see if he had a problem.
16. The Court considered the information contained in Meehan's Exhibit 6.
17. Mrs. Meehan first learned that she was pregnant with Samantha Renee Johnson in or around early April, 1991. She had begun having morning sickness at that time, and she missed her monthly menstrual period. Mrs. Meehan went to the doctor in April, 1991, and her pregnancy was confirmed at that time. Samantha Renee Johnson was born on December 1, 1991, was a full-term baby, and was not born prematurely.
18. Mrs. Meehan testified that she believes that Mr. Meehan is the father of Samantha Renee Johnson. Mr. Meehan testified that he believes that he is the father of Samantha Renee Johnson. Mr. Johnson testified that he believes that he is the father of Samantha Renee Johnson.
19. Although Mrs. Meehan and Mr. Meehan, through their attorneys of record request to the court to grant Mr. Meehan's Motion for DNA and Blood Testing pursuant to both N.C.G.S. 8-50.1 and Rule 35 of the North Carolina Rules of Civil Procedure, the Court finds that the Motion should be allowed only pursuant to N.C.G.S. 8-50.1.
20. There has been good cause shown for the granting of Mr. Meehan's Motion for Blood Testing.
Based upon the foregoing Findings of Fact, the Court makes the following:CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and the subject matter of this action.
2. This matter is properly before the court and all parties have received proper notice of the hearing.
3. The issue of paternity has been properly raised and pled by Mrs. Meehan in her Counterclaim and by Mr. Meehan in his Crossclaim filed in these actions.
4. Sammy Roger Johnson is an "alleged-parent defendant" by virtue of the counterclaim and crossclaim filed against him by Lisa Johnson (Meehan) and Thomas Meehan.
5. Mr. Meehan's Motion for Blood and DNA Testing should be granted, pursuant to N.C.G.S. 8-50.1.
6. There has been good cause shown for the granting of Mr. Meehan's Motion for Blood Testing.
7. Sammy Roger Johnson, Jr., Lisa McGhee Johnson Meehan, and Thomas C. Meehan are all parties to this action in which their physical conditions and blood groupings are in controversy. Samantha Renee Johnson is a child in the custody of a party or parties to this action, and her physical condition, including her blood grouping, is in controversy.
It is therefore ORDERED as follows:
1. All parties are ordered to submit themselves to Roche Biomedical Laboratory, 1643-A Owen Drive, Fayetteville, North Carolina (1-800-726-7624) for DNA and Blood Grouping testing, within forty five (45) days from entry of this Order on 19 January 1994. Sammy Roger Johnson, Jr. and Lisa McGhee Johnson Meehan, who have temporary joint custody, without prejudice, of Samantha Renee Johnson, are ordered to and shall submit Samantha Renee Johnson to Roche Biomedical Laboratory, 1643-A Owen Drive, Fayetteville, NC, for DNA testing and Blood Grouping testing within forty five (45) days from entry of this Order on 19 January 1994. The results of the tests are to be submitted to the attorneys for all of the parties in this action by Roche Biomedical Laboratory within thirty days after the testing occurs. . . .
2. Thomas C. Meehan shall pay all costs associated with the DNA and Blood testing ordered herein.
Mr. Johnson appeals.
Mr. Johnson appeals the trial court's order compelling him to submit to blood-grouping and DNA testing pursuant to G.S. 8-50.1(b). After careful review, we affirm.
I.
We note initially that "[a] court order requiring parties and their minor child to submit to blood-grouping testing does not affect a substantial right and is, therefore, interlocutory and not [immediately] appealable." State Ex Rel. Hill v. Manning, 110 N.C. App. 770, 772, 431 S.E.2d 207, 208 (1993). However, this Court may issue a writ of certiorari to review a trial court's order "`when no right of appeal from an interlocutory order exists.'" Stone v. Martin, 69 N.C. App. 650, 652, 318 S.E.2d 108, 110 (1984), quoting N.C. R. App. P. 21(a)(1). We choose to treat Mr. Johnson's interlocutory appeal as a petition for writ of certiorari and address the merits.
II.
[1] Mr. Johnson first contends that Mr. Meehan has no standing to move for blood-grouping tests under G.S. 8-50.1(b). We disagree. Mr. Johnson cites the United States Supreme Court's decision in Michael H. v. Gerald D., 491 U.S. 110, 105 L.Ed.2d 91 (1989), as authority for the proposition that a third-party, such as Mr. Meehan, has no standing to compel the husband of the biological mother to submit to a blood test to establish or disprove the paternity of a child born during the marriage. We find Michael H. inapposite. Michael H. involved the constitutionality of a California statute which prohibited a third party from seeking parental rights of a child born during the marriage of the biological mother to another man. The California statute at issue in Michael H. provided that "`the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.'" Michael H., 491 U.S. at 115, 105 L.Ed.2d at 101, quoting Cal. Evid. Code Ann. § 621(a) (West Supp. 1989) (emphasis added). The statute further provided explicitly that only the husband or wife could move for blood tests to determine paternity and then only within two years of the child's birth. Michael H., 491 U.S. at 115, 105 L.Ed.2d at 101, citing Cal. Evid. Code Ann. §§ 621 (c) (d). The Supreme Court held that the California statute did not deny third parties any substantive due process right to establish a parental relationship with the child. The Court did not hold that a putative father never has standing to challenge the marital presumption of legitimacy. Rather, the Court there held that states could place limits on such challenges.
The California statute at issue in Michael H. is far more restrictive than the North Carolina statute at issue here, G.S. 8-50.1(b). It provides in pertinent part:
(b) In the trial of any civil action in which the question of parentage arises, the court before whom the matter may be brought, upon motion of the plaintiff, alleged-parent defendant, or other interested party, shall order that the alleged-parent defendant, the known natural parent, and the child submit to any blood tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage.
Here, Mr. Meehan is an "interested party" under the statute. Mrs. Meehan filed a separate action against Mr. Meehan to compel Mr. Meehan to submit to blood-grouping tests pursuant to G.S. 8-50.1(b) to establish or disprove parentage. Mrs. Meehan's action against Mr. Meehan was consolidated with Mr. Johnson's original action against Mrs. Meehan for temporary custody of the minor child. Mrs. Meehan and Mr. Meehan have both filed acknowledgments of paternity. Under these facts, Mr. Meehan is clearly an "interested party" within the meaning of the statute and as such may move the trial court to order blood-grouping tests.
III.
[2] Mr. Johnson further argues that the minor child was born during his marriage to Mrs. Meehan and is presumed to be legitimate. Mr. Johnson further argues that Mr. Meehan has no standing to rebut the marital presumption and that G.S. 8-50.1 should not be construed to confer standing to Mr. Meehan to challenge this presumption. We disagree. In Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968), our Supreme Court stated:
When a child is born in wedlock, the law presumes it to be legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife.
Id. at 197, 159 S.E.2d at 568. The presumption that a child born during the marriage is legitimate is a rebuttable presumption. Eubanks, 273 N.C. at 189, 159 S.E.2d at 562. It may be rebutted "only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife." Id. (emphasis added). As our Supreme Court further explained in Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972), "[i]mpotency and nonaccess are set out therein [in Eubanks] as examples of types of evidence that would `show that the husband could not have been the father.'" Id. at 171, 188 S.E.2d at 325.
In Wright, supra, plaintiff-wife instituted an action against defendant-husband for alimony pendente lite, custody of and support for her minor child. Wright, 281 N.C. at 160, 188 S.E.2d at 318. Defendant-husband answered and admitted that the minor child was "entitled to support from him, regardless of the court's decision relative to custody of the said child." Plaintiff-wife, however, objected to thirty interrogatories submitted to her by Mr. Wright which called for her to answer detailed questions concerning whether plaintiff-wife was having an adulterous affair at the time of the minor child's conception. Id. at 161, 188 S.E.2d at 319. The trial court then allowed defendant-husband's motion that plaintiff-wife, defendant-husband and the minor child submit to blood-grouping tests pursuant to G.S. 8-50.1. Id. This Court reversed the trial court's order requiring the parties to submit to blood-grouping tests. Id. at 163, 188 S.E.2d at 320.
Our Supreme Court reversed and held that defendant-husband was entitled to have the order for blood-grouping tests. Id. at 173, 188 S.E.2d at 326. At the time of the Court's decision in Wright, G.S. 8-50.1 provided:
Competency of evidence of blood tests. — In the trial of any criminal action or proceedings in any court in which the question of paternity arises, regardless of any presumptions with respect to paternity, the court before whom the matter may be brought, upon motion of the defendant, shall direct and order that the defendant, the mother and the child shall submit to a blood grouping test . . . . Such evidence shall be competent to rebut any presumptions of paternity.
In the trial of any civil action, the court before whom the matter may be brought, upon motion of either party, shall direct and order that the defendant, the plaintiff, the mother and the child shall submit to a blood grouping test; provided, that the court, in its discretion, may require the person requesting the blood grouping test to pay the cost thereof. The results of such blood grouping tests shall be admitted in evidence when offered by a duly licensed practicing physician or other duly qualified person.
Wright, 281 N.C. at 168-69, 188 S.E.2d at 323-24. Although the first paragraph of G.S. 8-50.1 authorizing the trial court to order blood-grouping tests "regardless of any presumptions with respect to paternity" arguably could have been read to apply only in criminal actions in which the question of paternity arose, the Supreme Court stated:
[W]e are of opinion and hold that in both criminal and civil actions in which the question of paternity arises, the results of such blood-grouping tests must be admitted in evidence when offered by a duly licensed practicing physician or other qualified person, "regardless of any presumptions with respect to paternity," and that "[s]uch evidence shall be competent to rebut any presumptions of paternity."
Id. at 170, 188 S.E.2d at 324. The Court further concluded that, "[a]ssuming the blood-grouping tests are made and offered in evidence by qualified persons, the results thereof, if they tend to exclude defendant as the father of the child, may be offered in evidence to rebut the common-law presumption of legitimacy." Id. at 172, 188 S.E.2d at 326.
Here, Mr. Meehan has presented "other facts and circumstances" sufficient to question the presumption that the child, though born during the marriage, is legitimate. Mr. Meehan and Mrs. Meehan have both filed acknowledgments of paternity of the minor child. In the trial court's 19 January 1994 Order compelling the parties to submit to blood-grouping tests, the trial court found that while Mr. Johnson was absent in Saudi Arabia for a six month period ending 15 March 1991, Mrs. Meehan had sexual intercourse with Mr. Meehan on numerous occasions. Mrs. Meehan did not have sexual intercourse with anyone else during that period. When Mr. Johnson returned 15 March 1991, Mr. Johnson and Mrs. Meehan had sexual intercourse on at least one occasion. Mr. Johnson and Mrs. Meehan had been trying unsuccessfully to conceive a child for at least one year prior to Mr. Johnson leaving for Saudi Arabia. Mrs. Meehan learned that she was pregnant in early April 1991.
Mr. Johnson did not assign error to any of these findings of fact and there is competent evidence in the record to support each of them. The factual findings are sufficient "other facts and circumstances" to challenge the presumption of legitimacy. Based on our Supreme Court's holding in Wright v. Wright, 281 N.C. at 170, 188 S.E.2d at 324, we conclude that when the question of paternity arises, G.S. 8-50.1 allows the results of blood-grouping tests to be used to rebut any presumptions of paternity in both criminal and civil actions.
IV.
[3] Mr. Johnson next contends that he cannot be compelled to submit to blood-grouping tests because under G.S. 8-50.1(b) only "the alleged-parent defendant, the known natural parent, and the child" can be ordered to submit to blood-grouping tests. Mr. Johnson argues that as the "presumed father-husband," he cannot be the "alleged-parent defendant." We disagree. From the pleadings, it is clear that Mr. Johnson is the named defendant in Mrs. Meehan's counterclaim and in Mr. Meehan's crossclaim. Mr. Johnson has alleged in his own complaint that he is the parent of the child. Accordingly, Mr. Johnson is an "alleged-parent defendant" as determined by the trial court in its conclusions of law and is subject to being required to submit to blood-grouping tests. The trial court concluded that "good cause" had been shown for the granting of Mr. Meehan's motion for blood-grouping tests and therefore ordered all the parties to submit to DNA and blood-grouping testing that would provide to the court the most dependable evidence available to determine paternity.
In Ban v. Quigley, 812 P.2d 1014 (Ariz.Ct.App. 1990) the Arizona Court of Appeals rejected the petitioners' argument that the word "father" in a statute allowing the mother, father or guardian of the child to bring paternity actions was meant to include only the presumptive father-husband as opposed to the putative father. The Court held that the term "father" was "intended to mean the putative father, presumed or otherwise." Quigley, 812 P.2d at 1017. We likewise conclude that the term "alleged-parent defendant" may apply to a presumed father-husband as well as a third party putative father.
V.
[4] Finally, Mr. Johnson contends that allowing Mr. Meehan to rebut the marital presumption of legitimacy by compelling Mr. Johnson to submit to blood-grouping tests pursuant to G.S. 8-50.1(b) would violate public policy and would not be in the child's best interest. The trial court's order compelling Mr. Johnson to submit to DNA and blood-grouping tests to determine paternity arose in the context of deciding whether Mr. Johnson or Mrs. Meehan should have temporary custody of the minor child pending the parties' divorce proceeding. An order awarding custody of a minor child should award custody to the person that "will best promote the interest and welfare of the child." G.S. 50-13.2. "`[T]he welfare of the child is the paramount consideration to which all other factors, including common law preferential rights of the parents, must be deferred or subordinated.'" Surles v. Surles, 113 N.C. App. 32, 37, 437 S.E.2d 661, 663 (1993) (quoting Plemmons v. Stiles, 65 N.C. App. 341, 345, 309 S.E.2d 504, 506 (1983)). Evidence of paternity may be considered in determining what is in the child's best interest. Surles, 113 N.C. App. at 36, 437 S.E.2d at 663. We also note that in those jurisdictions that allow a putative father to bring a paternity action to establish the paternity of a child born during the marriage of the biological mother to another man, the trial courts are required to consider whether allowing the putative father to assert paternity and seek blood-grouping tests in an attempt to prove or disprove his paternity would be in the child's best interest. In Ban v. Quigley, 812 P.2d 1014 (Ariz.Ct.App. 1990), the Court of Appeals of Arizona held:
Arizona has a strong public policy of preserving the family unit when neither the mother nor the mother's husband disavows the latter's paternity of the child. Because of that policy, we conclude that the trial court must specifically consider whether it would be in the best interests of the child for the case to proceed before a putative father may be permitted to seek blood tests in an attempt to rebut the presumption of the husband's paternity.
Id. at 1017. Washington, Massachusetts, Maryland and Kansas all have similar requirements that the trial court first consider whether ordering the blood tests and the potential impact of the results will be in the child's best interest. See McDaniels v. Carlson, 738 P.2d 254 (Wash. 1987); C.C. v. A.B., 550 N.E.2d 365 (Mass., 1990); Turner v. Whisted, 607 A.2d 935 (Md. 1992); In re Marriage of Ross, 783 P.2d 331 (Kan. 1990). For these reasons, we conclude that in the context of a proceeding to award custody of a minor child, an order compelling the parties to submit to blood-grouping and DNA testing to determine paternity "will best promote the interest and welfare of the child." G.S. 50-13.2. Accordingly, we affirm the trial court's order compelling Mr. Johnson to submit to blood-grouping and DNA testing pursuant to G.S. 8-50.1(b).
Affirmed.
Judge McGEE concurs.
Judge WALKER dissents.