BILL NUMBER:S4593

TITLE OF BILL:
An act
to amend the family court act, in relation to paternity testing and
adjudications in child protective proceedings in the family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

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."