Barbara Ann W. v. David Wy.

KERRY R. TRAINOR, J. On February 2, 1999, David Wy. filed a verified petition seeking an order of this court vacating an order of filiation entered upon his admission. On May 15, 1991, he had appeared before Hearing Examiner Buse and admitted that he was the biological father of George W.-Wy., who was born out of wedlock to Barbara Ann W. on January 25, 1988. In support of his present application, Mr. Wy. asserts that "he has obtained a DNA test to exclude him as the father." After answering papers were filed by the child's assigned Law Guardian and the County Attorney on behalf of Barbara W. and the Suffolk County Department of Social Services (hereinafter referred to as DSS), the issue of the admissibility and weight to be given to this privately arranged DNA paternity test was placed squarely before the court.

The DNA test which is the driving force behind this litigation was performed under unusual circumstances. In early January of 1999, Mr. Wy. telephoned a nationally syndicated television talk show called "The Sally Jesse Raphael Show"; he offered to provide a DNA sample and appear as a guest to argue that he was not George W.-Wy.'s father. A representative of the show then telephoned Ms. W. She was equally convinced that DNA results would show that David Wy. was the father; she agreed to provide samples of her own and George's DNA. Ms. W.'s decision was a necessary foundation for the upcoming show and eventually for this litigation. Samples were collected and comparison testing was promptly completed by Micro-Diagnostics, Inc. (Micro-Diagnostics) of Nashville, Tennessee, in time for the videotaping of the show on January 13, 1999. Mr. Wy. appeared at the studio; Ms. W. testified that she did not appear because her son said he would be embarrassed if she did. Therefore, there was no guest to argue against Mr. Wy. He acknowledged that he had avoided paying over $28,000 in child support that was due to DSS in compensation for that agency's support of Ms. W. and George. He told the audience that he supported his wife and legitimate children, and would support George if he were the father. In a mocking manner, he described George as having an appearance that was totally different from himself, the mother, or any member of either of their families. He confidently stated he was not the father. His position was supported by Mr. Alan Gelb, the show's "paternity expert." When the show's host asked Mr. Gelb what Mr. Wy. should say to the Judge, Mr. DNA typing are complex, and judges and juries cannot properly weigh and evaluate conclusions based on differing standards of rigor.'" (Citing National Research Council, DNA Technology in Forensic Science § 2.1 [1994].)

In paternity proceedings in which genetic marker or DNA testing is conducted pursuant to a court order (see, Family Ct Act §§ 418, 532), the process of admissibility presumes compliance with the numerous requirements and standards set forth in Public Health Law article V and the regulations enacted thereupon. (See, 10 NYCRR subpart 58-1; DOH Wadsworth Center, Paternity/Identity Testing Standards, published on the Internet at http://www.wadsworth.org/labcert/document.pdf.) Admissibility is a given so long as the test was properly ordered by the court, performed by an authorized laboratory, and documented on a CPLR 4518 certification. High probative value is assigned to the stated results. In criminal proceedings, "forensic" DNA testing is similarly regulated by statutes, including Executive Law article 49-B, and a substantial body of case law. There is even a relatively recent provision that establishes procedures and standards that the courts must apply to applications to conduct new DNA testing as part of the process of moving to vacate a judgment of conviction (see, CPL 440.30 [1-a]). Presently, there are no statutory provisions that structure an equivalent procedure to apply to an application for testing in the context of a motion to set aside or abrogate a finding of paternity. There are other significant differences. In criminal cases, there are no automatic admissibility provisions for the trial setting and statutory evidentiary presumptions that are peculiar to Family Court paternity proceedings. In spite of these and other differences, there remains a common thread of strict testing standards that must be met in civil and criminal litigation. Hence, the State has rules and regulations which govern the licensing of forensic and paternity laboratories, the manner in which DNA specimens are collected, the storage of specimens, the analysis of data, and the like; this is all to insure that the highly probative results are reliable.

In the affidavit annexed to these DNA results, Dr. Cutter swears that Micro-Diagnostics is approved to do paternity DNA testing by the DOH. She goes on to "CERTIFY AND a willingness to totally disregard court orders, accumulate large child support arrears, risk incarceration, and appear on national television. There is no purpose served by sending the parties off, only to return by a different procedural gambit. Undoubtedly, they will be back. At this time, Mr. Wy.'s child support problems have taken on new significance. He is now employed "on the books" and, for the first time, DSS is recouping funds that they have spent to raise this child. Because of the amount that is due, a willful violation proceeding could result in incarceration with a substantial purge figure. Under these circumstances, this court is constrained to order that the parties submit to DNA testing that is to take place in strict compliance with the existing laws and regulations. The cost will be borne by Mr. Wy. in accord with Family Court Act § 532. It is his change of heart that makes the test necessary. The offer by "The Sally Jesse Raphael Show" to pay for this must be rejected because of potential conflicts with the payment provisions set forth in the Public Health Law. David Wy., Barbara Ann W. and George W.-Wy. are directed to provide samples for DNA testing, to be conducted by Lab Corp Inc. Samples are to be collected at the facility that Lab Corp Inc. maintains for this purpose on the second floor of this Family Court building on a date certain set forth in the separate order of this court.