Opinion
240 CAF 20-01265
03-19-2021
In the Matter of KIRK M.B., Petitioner-Respondent, v. RACHEL S., Respondent-Appellant, and Steven T.S., Respondent.
WEISBERG & ZUKHER, PLLC, SYRACUSE (DAVID E. ZUKHER OF COUNSEL), FOR RESPONDENT-APPELLANT. JEFFREY DEROBERTS, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR PETITIONER-RESPONDENT. KAREN J. DOCTER, FAYETTEVILLE, ATTORNEY FOR THE CHILD.
WEISBERG & ZUKHER, PLLC, SYRACUSE (DAVID E. ZUKHER OF COUNSEL), FOR RESPONDENT-APPELLANT.
JEFFREY DEROBERTS, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR PETITIONER-RESPONDENT.
KAREN J. DOCTER, FAYETTEVILLE, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding to establish paternity, respondent mother appeals from an order in which Family Court, without conducting a hearing, determined that genetic marker testing was in the best interests of the child and ordered such testing.
We agree with the mother that the court erred in ordering genetic marker testing without first holding a hearing to determine whether testing was in the best interests of the child. It is undisputed that, at the time of the child's birth, respondents were married to one another, and respondents alleged that they had access to each other during the relevant time frame such that the presumption of legitimacy would apply. Although the court has the authority to order genetic marker and DNA testing in order to establish paternity, "[n]o such test shall be ordered ... upon a written finding by the court that it is not in the best interests of the child on the basis of ... the presumption of legitimacy of a child born to a married woman" ( Family Ct Act § 532 [a] ; see Matter of Tracy C.O. v. Douglas A.F. , 66 A.D.3d 1390, 1391-1392, 886 N.Y.S.2d 269 [4th Dept. 2009] ; see also Matter of Jennifer L. v. Gerald S. , 145 A.D.3d 1581, 1582-1583, 46 N.Y.S.3d 310 [4th Dept. 2016], lv dismissed 29 N.Y.3d 942, 51 N.Y.S.3d 490, 73 N.E.3d 846 [2017] ). On this record, "[t]here was insufficient evidence before the court to determine the child's best interests," and we thus conclude that, before ordering the genetic marker test, the court should have conducted a hearing to determine whether it was in the best interests of the child to do so, based on the presumption of legitimacy ( Tracy C.O. , 66 A.D.3d at 1392, 886 N.Y.S.2d 269 [internal quotation marks omitted]; see Matter of Schenectady County Dept. of Social Servs. v. Joshua BB. , 168 A.D.3d 1244, 1245, 92 N.Y.S.3d 430 [3d Dept. 2019] ). We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition consistent with this decision.