Calendar Date: February 15, 2017
M. Lefevre, Cortland, for appellant.
Kirby, Ithaca, for respondents.
J. Mooney, Ithaca, attorney for the child.
Before: McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from an amended order of the Family Court of Tompkins County
(Rowley, J.), entered September 17, 2015, which dismissed
petitioner's application, in a proceeding pursuant to
Family Ct Act article 5, to adjudicate petitioner as the
father of a child born to respondent Kristin XX.
Kristin XX. (hereinafter the mother) and Brad XX.
(hereinafter the husband), were married in 2009 and have
resided together since then. Shortly after the mother gave
birth to a child in 2014, petitioner commenced this paternity
proceeding alleging that he is the child's biological
father. The petition requested an order for genetic testing,
which respondents opposed on the grounds that the husband was
presumed to be the child's father and that genetic
testing would not be in the child's best interests.
Respondents moved to dismiss the petition. Following a
hearing, Family Court granted respondents' motion and
dismissed the petition based solely upon the presumption of
legitimacy, without making a determination as to whether
genetic testing would be in the child's best interests.
court's "paramount concern" in a paternity
proceeding is the child's best interests (Matter of
Kristen D. v Stephen D., 280 A.D.2d 717, 719 ;
see Matter of Ettore I. v Angela D., 127 A.D.2d 6,
14 ). The governing statute provides that an
application for genetic testing shall be denied when a court
makes a written finding that testing "is not in the best
interests of the child on the basis of res judicata,
equitable estoppel, or the presumption of legitimacy of a
child born to a married woman" (Family Ct Act § 532
[a]; see Family Ct Act § 418 [a]). We agree
with petitioner that, as he made the requisite threshold
showing of "a nonfrivolous controversy as to
paternity" (Prowda v Wilner, 217 A.D.2d 287,
289 ), his request for genetic testing should not have
been denied in the absence of a best interests finding.
enacting the statutory provisions, the Legislature plainly
anticipated that cases involving the presumption of
legitimacy may present themselves in which, based upon all of
the circumstances, it will not be in a child's best
interests to order genetic testing (see id. at 290)
. Although respondents ask us to find
that this is such a case, we are unable to exercise our broad
power of review to render the best interests determination
upon the present record. The limited testimony that was taken
at the hearing failed to address many of the factors that
have been recognized in similar proceedings as relevant to
the issue of the child's best interests. These include
such factors as the child's interest in knowing the
identity of his or her biological father, whether testing may
have a traumatic effect on the child, and whether continued
uncertainty may have a negative impact on a parent-child
relationship in the absence of testing (see Hammack v
Hammack, 291 A.D.2d 718, 719-720 ; Matter of
Anthony M., 271 A.D.2d 709, 711 ). 
testimony established that respondents were still married and
living together at the time of petitioner's application,
and that the child, who was approximately seven months old
when the hearing was completed, had lived with respondents
since birth and had never met petitioner. The mother
testified that she and the husband believed that the husband
was the child's biological father, and that the husband
was willing to raise the child as his own. Notably, the
husband did not testify, but merely submitted an affidavit,
briefly averring that he was happy with the child's
birth, was named on the child's birth certificate, and
held himself out to be the child's father. No evidence
was offered as to the quality of his relationship with the
child or the effect, if any, of uncertainty as to his
biological paternity upon that relationship. Further, and
significantly, the hearing did not address whether genetic
testing could cause trauma to the child by potentially
identifying petitioner as the child's biological father,
thus disrupting the stability of the child's existing
family and, as stated in cases involving equitable estoppel,
interfering with "an already recognized and operative
parent-child relationship" (Matter of Lorie F. v
Raymond F., 239 A.D.2d 659, 660 ; accord
Matter of Kristen D. v Stephen D., 280 A.D.2d at 719).
the matter must be remitted for a hearing and a determination
as to whether, based upon all of the circumstances, including
the presumption of legitimacy, genetic testing would be in
the child's best interests (see Prowda v Wilner,
217 A.D.2d at 290-291; Matter of Gutierrez v
Gutierrez-Delgado, 33 A.D.3d 1133, 1135 ).
Petitioner's remaining contentions are rendered academic
by this determination.
McCarthy, J.P., Rose, Mulvey and Aarons, JJ., concur.
that the amended order is reversed, on the law, without
costs, and matter remitted to the Family Court of Tompkins
County for further proceedings ...