Long Island Family Law and Mediation Blog
Ever since the time that DNA testing has been recognized as a reliable method of determining paternity, family courts across the country have relied upon the testing to resolve disputes over paternity. Indeed, the New York Family Court Act discusses the availability of DNA testing for the purposes of establishing paternity in section 532.In fact, section 532 requires family law judges or magistrates to advise all parties of their right to request DNA testing in paternity cases, instructing that the court “shall” order testing when any party requests it. That being said, the statute also prohibits DNA testing when the judge determines that testing is not in the best interest of the child based on certain enumerated reasons.
As noted above, parties have a right to a paternity test, and a test will be ordered if any party makes such a request. Additionally, the court can, on its own motion, order paternity testing even if neither party has requested it.
Although the statute seems fairly straightforward, complex issues may arise. For example, consider a situation in which one party files a paternity action, requests a paternity test in hopes of establishing paternity, and then the responding party acknowledges paternity. In this situation, the responding party agrees with the requesting party on the issue of paternity. This may seem like a clear-cut scenario in which testing will not be required, but the court may still order testing.
Note that section 532 instructs that a judge “shall” order DNA testing if either party requests it. As a general rule, when a statute uses the word “shall,” courts are not at liberty to exercise discretion in the matter and must perform the actions that follow the word “shall.” Thus, if a party requests a paternity test, the court “shall” order the test even if the responding party acknowledges paternity.
A court can also order DNA testing without a motion from either party, as long as testing is in the best interest of the child. In one case, an appellate court determined that a lower court acted in error when it rejected a petitioner’s request for DNA testing after he initially agreed that he was the father but subsequently learned that the child’s mother had an affair around the time of the child’s conception. The petitioner asked the court for permission to question the mother about her affair and, depending on her answers, order DNA testing. The court rejected the petitioner’s request.
On appeal, the court reversed the case in favor of the peitioner. The court explained that it was the petitioner’s right – under section 532 – to request testing, even if he had previously acknowledged paternity. The court’s decision was based on the fact that the potential father subsequently learned of a potential affair during the pendency of the case.
Are You Involved in a New York Paternity Dispute?
If you are currently involved in a New York paternity dispute, and you believe that DNA testing can help you establish your case, contact the Law and Mediation Office of Darren M. Shapiro. Attorney Darren M. Shapiro has extensive experience representing his New York clients in all types of custody, paternity, and support cases. Call 516-333-6555 to schedule your free consultation today.
More Blog Posts:
Equitable Distribution in New York Divorce Cases, Long Island Family Law and Mediation Blog, March 7, 2018
Under New York Family Law, Marriage May Boil Down to an “Economic Partnership”, Long Island Family Law and Mediation Blog, April 6, 2018