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In re Lovely M. v. McL.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 18, 2010

IN RE LOVELY M., APPELLANT, A CHILD UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
v.
MICHAEL MCL., PETITIONER, TRACEY M., RESPONDENT.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about May 27, 2009, which directed that DNA testing be performed on petitioner and the subject child in connection with petitioner's unopposed paternity petition, unanimously reversed, on the law, without costs, further dissemination of any results of testing performed pursuant to the order hereby prohibited, and the matter remanded to Family Court for a hearing on whether DNA testing would be in the best interests of the child. Appeal from order, same court and Judge, entered on or about June 25, 2009, which denied a motion by the attorney for the child to vacate the aforesaid order and enter an order of filiation declaring petitioner to be the child's legal father, unanimously dismissed, without costs, as academic.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Catterson, Renwick, DeGrasse, Manzanet-Daniels, JJ.

The court erred in ordering DNA testing without first conducting a hearing to determine whether DNA testing would be in the child's best interests (see Family Court Act § 532[a]; Matter of Shondel J. v Mark D., 7 NY3d 320, 329-330 [2006]; Matter of Darlene L.-B. v Claudio B., 27 AD3d 564 [2006]). We find the existing record too fragmentary to permit the conclusion that DNA testing would not be in the child's best interests.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100218

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