You are here: / / DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY...

DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING.

The Third Department determined Family Court should not have dismissed the paternity petition based solely on the presumption of legitimacy and should have held a best interests hearing:

​

We agree with petitioner that, as he made the requisite threshold showing of “a nonfrivolous controversy as to paternity” … , his request for genetic testing should not have been denied in the absence of a best interests finding.

In enacting the statutory provisions, the Legislature plainly anticipated that cases involving the presumption of legitimacy may present themselves in which, based upon all of the circumstances, it will not be in a child’s best interests to order genetic testing… . Although respondents ask us to find that this is such a case, we are unable to exercise our broad power of review to render the best interests determination upon the present record. The limited testimony that was taken at the hearing failed to address many of the factors that have been recognized in similar proceedings as relevant to the issue of the child’s best interests. These include such factors as the child’s interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing … . * * *

​

Accordingly, the matter must be remitted for a hearing and a determination as to whether, based upon all of the circumstances, including the presumption of legitimacy, genetic testing would be in the child’s best interests … . Matter of Mario WW. v Kristin XX., 2017 NY Slip Op 02715, 3rd Dept 4-6-17

 

FAMILY LAW (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/PATERNITY (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/LEGITIMACY, PRESUMPTION OF  (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)

You might also like
PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT).
Competing Expert Affidavits Raised a Question of Fact About Whether the Speed of Defendant’s Vehicle Was a Proximate Cause of the Accident—Plaintiff’s Vehicle Was Struck Broadside by Defendant’s Vehicle When Plaintiff Pulled Into Traffic–Supreme Court’s Grant of Summary Judgment to Defendant Reversed
Payroll Deduction for Health Benefits Should Be Added to Teacher’s Salary When Calculating Retirement Benefit
Grandmother’s Pro Se Petition to Modify Visitation Is To Be Construed Liberally and Should Not Have Been Dismissed Without a Hearing
THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS WARNED THE USE OF DRUGS WHILE ON FURLOUGH WOULD RESULT IN AN ENHANCED SENTENCE; MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA (THIRD DEPT).
HERE THE CUSTODY CASE WAS TRANSFERRED TO A NEW JUDGE; THE PREVIOUS JUDGE’S ORDERS CONSTITUTED THE LAW OF THE CASE WHICH CANNOT BE VIOLATED BY SUBSEQUENT ORDERS BY THE NEW JUDGE (THIRD DEPT).
REMITTAL IS NECESSARY BECAUSE THE SORA RISK-LEVEL-ASSESSEMENT WAS NOT SUPPORTED IN THE RECORD BY FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY THE CORRECTION LAW; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT AN AVAILABLE GROUND FOR A DOWNWARD DEPARTURE WAS NOT RAISED (THIRD DEPT).
FAILURE TO SPECIFY WHEN THE OBJECTION TO BE REVIEWED WAS MADE IN ANSWER TO QUESTION 15 OF THE APPLICATION JUSTIFIED THE BOARD’S REFUSING TO REVIEW IT, DESPITE THE FACT THAT THE DATE OF THE RELEVANT HEARING WAS INDICATED ELSEWHERE IN THE APPLICATION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

GRANDMOTHER DID NOT DEMONSTRATE A PROLONGED SEPARATION OF THE CHILD FROM MOTHER... CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED...