Opinion
P-00253-08.
Decided January 20, 2009.
David Rudgers, Ticonderoga, New York, for Petitioner.
Gregory V. Canale, Esq., Glens Falls, New York, for Respondent Timothy MacIntyre.
Heather L. Knott, Esq., Hague, New York, Law Guardian.
Paternity proceeding by petitioner Dawn McCoy (McCoy) against respondents Jason Briggs (Briggs) and Timothy MacIntyre (MacIntyre) to determine the paternity of a female child born in August 2007. The instant proceeding was initially commenced on March 17, 2008 as one for custody only under Article 6 of the Family Court Act. At the initial appearance on April 28, 2008, at which McCoy, Briggs and the Law Guardian were present since MacIntyre had not yet been served, McCoy informed the Court that although Briggs had signed an acknowledgment of paternity at the time of the child's birth in Vermont based upon her representations to him that he was the father she believed that MacIntyre was the child's natural father. She requested paternity testing, and both Briggs and the Law Guardian agreed. Based upon the allegations of the petition in which McCoy alleged that MacIntyre "is probably the true blood father" and McCoy's in-court assertions, the petition was deemed to allege claims for both custody and paternity. The case was adjourned to May 12, 2008 for personal service upon MacIntyre.
MacIntyre appeared on May 12, 2008 and was advised of the nature of the allegations, and of his rights to counsel and to an adjournment. The Court ordered the parties to appear for genetic marker testing on May 27, 2008, but scheduled an appearance for MacIntyre on May 23rd so that he could appear with counsel and advise the Court of any reason why he should not submit to testing. Neither MacIntyre nor his attorney appeared on May 23, 2008, and the order directing MacIntyre to submit to testing was continued.
Briggs submitted to genetic marker testing and the results excluded him as the father. On July 7, 2008, McCoy, Briggs and the Law Guardian appeared, but MacIntyre did not. After noting that the child was less than one year old and that there would be no traumatic effect upon the child from either the testing procedure or a determination of the identity of the child's true father, and upon the consent of McCoy, Briggs and the Law Guardian, the Court determined that a material mistake of fact existed sufficient to warrant an order vacating ab initio the acknowledgment of paternity. Orders were issued determining that Briggs was not the father of the child, vacating the acknowledgment of paternity, and dismissing the petitions for custody and paternity as against Briggs. The Court directed that MacIntyre personally appear on August 4, 2008, and notice was issued.
MacIntyre appeared with counsel on August 4, 2008. Counsel orally moved for dismissal of the petitions based upon the acknowledgment of paternity and the fact that McCoy and Briggs were living together at the time of the child's birth. The Court denied the motion without prejudice to filing a written motion for such relief, and directed MacIntyre to submit to genetic marker testing on August 19, 2008. The results were filed with the Court on September 2, 2008 and established MacIntyre's probability of paternity at 99.99%, with a combined paternity index of 14,566 to 1.
MacIntyre's counsel filed a motion in writing on September 11, 2008 seeking an order vacating the genetic marker test result and dismissing the paternity petition based upon the acknowledgment of paternity signed by Briggs, asserting that the acknowledgment of paternity was not challenged within sixty days as required by FCA § 516-a (a), precluding the Court from vacating it, and that the petition failed to sufficiently allege that MacIntyre was the father. McCoy's counsel filed an affirmation and memorandum of law in opposition on October 1st and 20th, 2008. For the reasons that follow, MacIntyre's motion is denied.
MacIntyre's reliance upon subdivision (a) of FCA § 516-a is misplaced. Subdivision (b) of that statute specifically authorizes a challenge to an acknowledgment of paternity "after the expiration of sixty days of . . . execution . . . by alleging and proving fraud, duress, or material mistake of fact" ( FCA § 516-a [b]). "If the person proves to the court that the acknowledgment of paternity was signed under fraud, duress or due to a mistake of material fact, the court shall order genetic marker tests . . . for the determination of the child's paternity" ( id.).Should the court determine that the person who signed the acknowledgment is not the father of the child, such acknowledgment "shall be vacated" ( id.).
These provisions make clear that an acknowledgment of paternity creates a rebuttable, rather than an a conclusive, presumption of paternity which, like the presumption of legitimacy, can be overcome by a genetic test result ( see Constance G. v. Herbert Lewis L., 119 AD2d 209, 506 NYS2d 111; Dawn B. v. Kevin D., 96 AD2d 922, 923, 466 NYS2d 363, 364). Any presumption of paternity arising from the parties' marriage relationship or a signed acknowledgment meeting the requirements of law "may be rebutted where to do otherwise would outrage common sense and reason. ( Id., at p. 8, 170 NE at p. 473; Anonymous v. Anonymous, 1 AD2d 312, 150 NYS2d 344)" ( cf., Matter of Fay's Estate, 44 NY2d 137, 142, 404 NYS2d 554, 556, 375 NE2d 735, 737). As in cases dealing with the presumption of legitimacy, "if the truth can be discovered, and equity does not demand otherwise, the presumption [of paternity] should not be utilized to perpetuate a falsehood ( see, Matter of Constance G. v. Herbert Lewis L., 119 AD2d 209, 211, 506 NYS2d 111, lv. dismissed 70 NY2d 667, 518 NYS2d 960, 512 NE2d 543)" ( cf., Richard W. v. Roberta Y., 212 AD2d 89, 92, 629 NYS2d 512, 514-515).
Moreover, the threshold for ordering genetic marker testing is not high. "A party seeking paternity testing under the Family Ct. Act need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis for them ( see Prowda v. Wilner, 217 AD2d 287, 289, 634 NYS2d 866; see also Family Ct. Act §§ 418, 532)" ( Gutierrez v. Gutierrez-Delgado , 33 AD3d 1133, 1134, 823 NYS2d 248, 250).
The fact that the acknowledgment of paternity here was executed in Vermont, does not require a different result. While FCA § 516-a (d) clearly mandates that "[a] determination of paternity made by any other state . . . whether established through an administrative or judicial process or through an acknowledgment of paternity signed in accordance with that state's laws must be accorded full faith and credit . . .", there is nothing in the statute which precludes a signatory to an out-of-state acknowledgment from challenging it as provided in that statute. Indeed, this Court accorded full faith and credit to the Vermont acknowledgment of paternity. However, when presented with the sworn allegations of the petition alleging that MacIntyre was the "true blood father"and McCoy's in-court admissions that Briggs was not the real father and that he signed the acknowledgment based upon her inaccurate representations to him that he was the father, and after taking into consideration various factors relative to the best interests of the child ( see Prowda v. Wilner, 217 AD2d 287, 290, 634 NYS2d 866, 869), the Court determined that sufficient evidence of a material mistake of fact had been submitted and the child's best interests would be served by paternity testing. "To avoid operation of the general rule favoring testing, the party seeking to do so . . . must adduce facts sufficient to support the finding necessary to trigger the exception ( see, Matter of Kimberly A. v. Vincent A., supra, at 973, 595 NYS2d 633 {156 Misc 2d 971}; Besharov, 1990 Supp. Practice Commentary, McKinney's Cons. Laws of NY, Book 29A, Family Ct. Act § 418, at 49 [1995 Pocket Part]). To accomplish this, plaintiff must show more than simply 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 ( cf., Matter of Lanpher v. Lanpher, 215 AD2d 905, 906, 626 NYS2d 874, 875; Della Vecchia v. Goffredo, 203 AD2d 511, 512, 612 NYS2d 932)."
( Id., at 290, 634 NYS2d at 868). The genetic marker testing results conclusively proved that Briggs is not the child's natural father and the acknowledgment was signed under a material mistake of fact. MacIntyre has submitted no evidence, or made any claim, that testing would be contrary to the child's best interests. Thus, testing was appropriately ordered and the acknowledgment of paternity was properly vacated pursuant to FCA § 516-a (b)(ii).
Finally, turning to MacIntyre's contention that the petition verified March 7, 2008 is facially defective by fails to adequately allege that he is the father of the child, the petition not only names MacIntyre as one of two respondents but also alleges that he is "probabley [sic] the true blood father". The petition is facially sufficient and MacIntyre's argument is without merit.
MacIntyre's motion is hereby denied in all respects, and the parties (except for Briggs) are hereby directed to appear with counsel on February 4, 2009 at 9:30 a.m. for further proceedings consistent herewith.
SO ORDERED.