Relates to paternity testing and adjudications in child protective proceedings in family court

Section 564 of the Family Court Act permits Family Court, in proceedings other than paternity proceedings - e.g., child abuse, child neglect and permanency proceedings - to adjudicate paternity where both parents are before the court, the putative father waives the right to the filing of a separate paternity petition and the right to a hearing and the court is satisfied as to the child's paternity based upon sworn statements or testimony. Where these conditions are not met, the court may direct either pat1y, the child, the child's guardian or another person authorized under section 522 of the Family Court Act to file a separate, verified paternity petition. However, the statute is silent regarding any authority for Family Court to direct genetic testing of any patty or the child. This gap in the law has created a roadblock for permanency planning for many children in child protective and permanency proceedings by impeding early identification both of fathers and of paternal grandparents and other relatives who may be suitable resources for the children. The impending April 1, 2011 effective date of the new kinship guardianship program in New York State underscores the importance of the identification of paternal relatives.

Accordingly, we propose this measure to address the problem. It would amend sections 532 and 564 of the Family Court Act to authorize the court to order genetic testing in non-paternity proceedings upon consent of both parents. Where consent is not obtained, the Court would be permitted to direct any party to file a verified paternity petition. Where the mother's consent is not forthcoming by reason of her absence from the court, the court would be authorized to direct genetic testing so long as she had received notice and an opportunity to be heard.(1) As in paternity cases, no test would be ordered where the court makes a written finding that testing would not be in the child's best interests by reason of res judicata, equitable estoppel or the presumption of legitimacy. Further, section 564 of the Family Court Act would be amended to permit Family Court to adjudicate paternity on the basis of genetic testing, not simply on the basis of sworn statements or testimony. Corresponding amendments would be made to child protective and permanency provisions of the Family Court Act [Family Court Act §§1035,1089].

Enactment of a procedural vehicle for the expeditious establishment of paternity of children who are the subjects of child protective and permanency proceedings is of the utmost importance. It would further the legislative goal of early identification of non-respondent fathers

and of the pool of paternal grandparents and other relatives who may provide far better alternatives for children than stranger foster care.

The issue of paternity arises frequently in child protective and permanency proceedings in light of the large number of children before Family Court who come from non-marital families and who may be the products of transitory or intermittent relationships. Often a person believing himself to be the father or a paternal grandparent or another paternal relative comes to court and seeks to care for or plan for an allegedly abused or neglected child. Sometimes more than one possible father appears. If paternity has not already been legally established through execution of an acknowledgment of paternity or through a judicial order of filiation, the court entertaining the child protective case must resolve the issue as soon responsible so that the child can be placed with the father or other family members, and so that permanency planning for the child can proceed with dispatch. If the requirements of current section 564 of the Family Court Act are not met - if, for example, the mother is not before the court or the court doubts the veracity of the mother's statement concerning paternity - the court's only alternative is to direct one of the parents to file a paternity petition. All too often this direction is not followed or the alleged father is unable to serve the petition on the mother whose whereabouts may be unknown. In such situations, the child's paternity may remain undetermined while the child lingers in foster care even though genetic testing, including the "motherless calculation" that can be performed in the mother's absence, could swiftly have resolved the issue.

Permitting a court to order genetic testing in the context of a child protective or permanency proceeding would quickly resolve questions regarding a child's paternity and would thus facilitate the child's path to a safe, healthy and permanent home. Identification of a child's parentage would not only permit location of relatives who may be resources for the child, but may also serve to identify siblings who may be able to develop significant relationships with him or her. Equally significant, establishment of paternity would benefit the child by widening the availability of medical and other genetic information and by establishing the child's right to child support, medical and other insurance and inheritance from the father.

This measure would have no fiscal impact upon the State, and would take effect immediately.

2008 LEGISLATIVE HISTORY: Senate 7170 (Sen. DeFrancisco) [Judiciary] Assembly 11460 (Rules-Weinstein) [Codes]

2010 LEGISLATIVE HISTORY: OCA 2010-83

Footnote

(1) DNA testing now can be performed with a high degree of scientific accuracy with samples taken solely from the child and putative father, a procedure commonly known as a "motherless calculation."