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Evelyn H. v. David H.

Other Lower Courts

November 22, 2000

Evelyn H., Plaintiff,
v.
David H., Defendant.

COUNSEL

Jerome K. Frost for defendant.

Ara Asadourian for plaintiff.

Joseph Lavorando, Law Guardian.

OPINION

James P. Dawson, J.

This matrimonial action was commenced in 1995 with

Page 133

plaintiff seeking a divorce and various ancillary relief including custody of the four minor children of the marriage: A., now age 16, D., now age 14, Dn., now age 11, and R., now age 7.

In a previous order rendered in 1996, the Court granted temporary custody of the four children to the plaintiff and awarded her temporary child support and spousal maintenance. Thereafter, both parties urged the Court to conduct a permanent child custody hearing in advance of the divorce trial, representing that an order of permanent custody likely would limit, if not obviate, the need for a trial. A custody trial was thus held in 1998 and a court-ordered forensic custody examination was conducted resulting in a comprehensive custody and visitation stipulation which was reduced to an order in 1999.

The Present Motion

The defendant now moves to compel DNA testing of the plaintiff and the four children, alleging that on or about August 1998, he heard that plaintiff stated to an unnamed person at an unspecified time that he was not D.'s father. Shortly thereafter, the defendant obtained saliva and/or blood samples from all of the children and had those samples subjected to DNA testing. The results of that DNA testing set forth in the defendant's moving papers show that three of the four children are statistically not his children. The defendant then located and obtained an affidavit from that unnamed person referenced above, a person now identified as K.B .

The plaintiff opposes the motion insisting that all of the children were fathered by the defendant, alleging that the defendant should be estopped from denying paternity based on his delay in raising the issue and by virtue of his continuing relationship with the children notwithstanding the DNA test results defendant presents. The Law Guardian raises the same issues as the plaintiff and both the plaintiff and the Law Guardian point out that the best interests of the children would not be served by ordering testing.

The Court ordered a hearing to inquire into the best interests of the children upon finding that a genuine controversy existed regarding paternity. The defendant then moved for an order directing a forensic ...


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