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The issue of law in this situation is determining the paternity of the child in question


The Integrated Domestic Violence Court of the State of New York in Onondaga County decided on December 23, 2010 that in response to a Memorandum of Law request dated December 20, 2010, which requested a DNA test be ordered to determine paternity of the child in question, that the test would be ordered. The issue of law in this situation is determining the paternity of the child in question. Because that determination in this situation, would help to determine a course of action for the Integrated Domestic Violence Court to address.

The Integrated Domestic Violence Court is a part of the Supreme Court of the State of New York. It was created with respect to the Chief Judge of the City of New York to handle cases involving domestic violence crimes. Not all crimes qualify as domestic violence, but those that do need to be addressed in many cases in a completely different manner than those which are not. The Chief Judge has the authority to regulate the courts of New York. That means that the Chief Judge has the right to reassign any case that involves any type of domestic violence and reassign it to the Integrated Domestic Violence Court. Further, if there is more than one case pending in the New York court systems; they can all be consolidated into one case before the same judge, in the same hearing. The ability to combine all pending cases in to one case, enables the judge who is hearing a case to get an overall picture of the problems that are currently facing the family in question. The actions ordered by the court can then take in to consideration the totality of the circumstances which are present and enable the court to determine a course of action that is in the best interests of the child an the advancement of the administration of suitable justice.

It is not in question in this case, that the male subject, who is the boyfriend of the mother, has committed several instances of domestic violence against her. It is also not at question that the child’s mother had sexual relations with the male subject on several different dates. Any of these contacts, could realistically have produced the child in question. The mother, however, also had sexual relationships with other males at this time who could be the biological father of this child. On April 29, 2010 the Court chose not to order a DNA test at the request of the Mother and the boyfriend of the mother, the putative father, who is the subsequent male in question. This decision was based on the fact that the Attorney for the Child at question was not present at the hearing. The hearing was adjourned until May 27, 2010. On May 27, 2010 the court had to postpone the hearing again because the mother of the child, was pregnant with another child. This pregnancy was considered a high-risk pregnancy and she had been placed on bed rest. She was restricted to her bed and was not allowed to appear in court. The case was postponed until October 12, 2010.

On October 12, 2010, the Attorney for the Child requested a DNA test and the attorneys for the parents stated that their clients did not want a DNA test at that time. There was no reason given for the change of direction taken by the mother and the putative father when just a few months previously, they had both wanted the DNA test. The Attorney for the child stated that it was important for the child to have a high degree of certainty as it regards the issue of his parentage. This was especially important to the child since the mother had at one time stated that the male subject involved in this case was not the biological father of the child in question. Further, the male subject involved in this case, has two separate Harassment in the second degree charges against him. In both of these charges, the victim is the mother of the child in question in this case. The court ordered resolution in those charges of incarceration and a “stay away” Order of Protection. Therefore, the male in this case is ordered to stay away from the victim and possibly the child as well. There are also current felony burglary charges pending against the male in a different court room before a different judge which also figures in to the Order of Protection in this case, since an Order of Protection was issued to protect the mother in the other case. The male in this case had filed an Acknowledgment of Paternity with the Registrar of Onondaga County on July 7, 2010. The Acknowledgment of Paternity was not filed with the paternity petition, but was given to the Court at a subsequent Court appearance.

According to Section 516 – a, of the Family Court Act states that a “valid Acknowledgment of Paternity shall establish the paternity . . . of the child.” However, in this case, the Acknowledgment of Paternity was not filed or executed until several months after the original paternity petition was filed. In light of these findings, and the fact that the male subject has changed his position repeatedly in regards to his paternity of this child, the Court finds that the Acknowledgment of Paternity in this case does not serve as proof to the paternity of this child.

Section 518(a) of the Family Court Act grants the court a broad range of discretion where DNA testing is concerned. Sometimes, the Court finds that DNA testing is not in the best interests of the child on the “basis of equitable estoppel, res judicata, or the marital presumption of legitimacy.” According to the Farlex Legal Dictionary, ( equitable estoppel is “when a court will not grant a judgment or other legal relief to a party who has not acted fairly.” Farlex defines res judicata as, “[Latin, A thing adjudged.] A rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit” and states that, “The U.S. legal system places a high value on allowing a party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of res judicata to prevent a party who is not satisfied from trying to litigate the issue a second time.” The marital presumption of legitimacy is that if a child is born to a married couple, the child is presumed to be the product of the two spouses and not the product of one of the spouses and a person from outside the marriage unless otherwise claimed by the parties involved.

Decisional law holds that in proceedings, such as this case to determine paternity for this one child, equitable estoppel may be properly applied by the court in a proceeding where the “paternity petition is filed by a putative father to establish paternity rather than to deny paternity.” (Sharon GG v. Duane HH, 95 AD2d 466.) The definition of “putative” is that which is commonly believed or supposed to be true. This establishes that the man in this case who is commonly believed to be the father of this child has applied by the court for a DNA test proving that he is in fact the child’s father and not in order to prove that he is not. This court is concerned that a determination should be made prior to the ordering of a DNA test because this case somewhat parallels the case of Shondel J. v. Mark D., 7 NY3d 320 as to whether or not estoppel applies. The Court of Appeals projects that estoppel and the estoppel analysis is important only as it clarifies the best interests of the child and not in reference to the relationships between the two adult parties. In other words, the only person of importance in this type of litigation as it applies to the totality of the circumstances is the child. The adults involved in this litigation made their own choices. These choices involved them in this litigation. The child made no choices and was involved based on the actions of his parents.

In this case, the court has determined that it would be in the best interests of the child to order a DNA test as the child’s Attorney requested. The Court determines that it is important to order this DNA test especially in light that the mother holds “inconsistent views” about who the father of the child is. Another factor that is important in this case is the acts of domestic violence that the putative father has committed against the mother of the child. The Court makes a point that regardless of the results of a DNA test, the putative father could still assume a parental role in the child’s life with the permission of the mother.

This court holds that it is not necessary to order a separate best interests hearing relative to (Vernon J. v. Sandra M., 36 AD3d 912.)because there is sufficient information available in this case to make the determination on the evidence that has been presented. That being said, the Court grants the requests of the Attorney for the Child and orders the people defined earlier as the putative father and the child’s mother, to undergo a DNA test as scheduled by the Court for the purpose of determining if the putative father is, in fact, this child’s actual biological father.

Issues of law are constantly changing. A person who is not specifically trained in the law cannot begin to know what all of their rights are without the assistance of a professional. Here at Steven Bilkis and Associates, we provide New York Order of Protection Attorneys, New York Domestic Violence Lawyers, New York Assault Attorneys, and New York Criminal lawyers. New York Family Lawyers will stand by you and ensure that your rights are protected. New York Personal Injury Attorneys can argue your side and make sure that you and your loved ones are considered. We make sure that you are rightfully awarded compensation for your suffering.

Stephen Bilkis & Associates with its Domestic Violence Lawyers has convenient offices throughout the New York Metropolitan area including Corona, New York. Our Personal Injury Attorneys can provide you with advice to guide you through difficult situations. Without a Domestic Violence Lawyer you could lose precious compensation to help with your medical bills and the trauma to you and your loved ones following such a frightening experience. This is true even if the Attorney for the assailant has not adequately made their case. In addition to Personal Injury Law, Stephen Bilkis and Associates can recommend Criminal Lawyers who will protect your rights if you are ever arrested.

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