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Matter of Donald v. Teresa

Appellate Division of the Supreme Court of New York, Third Department
Nov 30, 1995
221 A.D.2d 862 (N.Y. App. Div. 1995)

Opinion

November 30, 1995

Appeal from the Family Court of Schenectady County (Griset, J.).


Petitioner, an inmate at a State correctional facility, commenced this proceeding to obtain an order of filiation regarding a child born to respondent on September 30, 1990. Notwithstanding respondent's opposition to such order at the parties' first appearance before Family Court, blood tests were ordered. At their next appearance before Family Court, the court discussed with the parties and their counsel the results of the tests. During a colloquy between petitioner and the court, it was explained to petitioner that both the HLA and DNA test results showed scientifically that he could not be the father. Petitioner disagreed with such results, vowed to "fight it" and even advised that he would file an appeal should the court dismiss the petition. Counsel for the Department of Social Services requested a dismissal of the petition as a result of the blood grouping tests, which was granted by the court. This appeal by petitioner ensued.

We find that there must be a reversal since Family Court erred in dismissing the petition solely on the basis of the results of blood grouping tests. While Family Court Act § 532 permits the results of blood grouping tests to be received in evidence, such evidence must be admitted in the context of a fact-finding hearing. Here, despite petitioner's protestations, no hearing was conducted ( see, Matter of Juliet C. v Gerald B., 202 A.D.2d 196; Matter of Burns v Craven, 192 A.D.2d 1130). Clearly, "petitioner's task of attacking the accuracy of both the HLA and DNA tests, and of establishing [his] paternity * * * by clear and convincing evidence, will surely be monumental. Yet, [while] the task is formidable, a hearing should not [have been] precluded" ( Matter of L.I. v E.T.R., 155 Misc.2d 74, 79).

Mikoll, J.P., White, Casey and Spain, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Schenectady County for further proceedings not inconsistent with this Court's decision.


Summaries of

Matter of Donald v. Teresa

Appellate Division of the Supreme Court of New York, Third Department
Nov 30, 1995
221 A.D.2d 862 (N.Y. App. Div. 1995)
Case details for

Matter of Donald v. Teresa

Case Details

Full title:In the Matter of DONALD I., Appellant, v. TERESA K., Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 30, 1995

Citations

221 A.D.2d 862 (N.Y. App. Div. 1995)
634 N.Y.S.2d 255

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