Mario WW. v. Kristin XX., 149 A.D.3d 1227 (N.Y. App. Div. 2017). · Go Syfert
Mario WW. v. Kristin XX., 149 A.D.3d 1227 (N.Y. App. Div. 2017). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 2 distinct courts.
Strongest positive: M.R. v. E.R. (nysupctwster, 2024-11-30)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) M.R. v. E.R.
N.Y. Sup. Ct., Westchester Cty. · 2024 · confidence medium
Nevertheless, the "paramount concern" in a paternity proceeding is the child's best interests ( Matter of Mario WW . v Kristin XX ., 149 AD3d 1227, 1227 [3d Dept 2017] [internal quotation marks omitted]).
discussed Cited as authority (rule) Matter of Schenectady County Dept. of Social Servs. v. Noah DD.
N.Y. App. Div. · 2021 · confidence medium
Footnote 3: With no party asserting equitable estoppel, it is unclear whom Family Court believed was shouldering the burden to make "the requisite threshold showing of a nonfrivolous controversy as to paternity" ( Matter of Mario WW. v Kristin XX. , 149 AD3d 1227, 1228 [2017] [internal quotation marks and citation omitted]; see generally Matter of Stephen N. v Amanda O. , 173 AD3d 1280 , 1282 [2019], lv dismissed 34 NY3d 1033 [2019]; Matter of Christopher YY. v Jessica ZZ. , 159 AD3d 18 , 29 [2018], lv denied 31 NY3d 909 [2018]).
discussed Cited as authority (rule) Matter of Stephen N. v. Amanda O.
N.Y. App. Div. · 2019 · confidence medium
In the context of a paternity proceeding, a best interests analysis focuses on "factors [such] as the child's interest in knowing the identity of his or her biological father, whether [*3]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" (Matter of Mario WW. v Kristin XX., 149 AD3d 1227, 1228 [2017]; see Matter of Beth R. v Ronald S. , 149 AD3d at 1218-1219).
discussed Cited as authority (rule) Matter of Schenectady County Dept. of Social Servs. v. Joshua BB.
N.Y. App. Div. · 2019 · confidence medium
Respondent appeals. [FN1] "A court's paramount concern in a paternity proceeding is the child's best interests" ( Matter of Mario WW. v Kristin XX. , 149 AD3d 1227, 1228 [2017] [internal quotation marks and citations omitted]; see Matter of Kristen D. v Stephen D. , 280 AD2d 717, 719 [2001]).
examined Cited as authority (rule) Matter of Christopher YY. v. Jessica ZZ. (4×)
N.Y. App. Div. · 2018 · confidence medium
Even if the presumption of legitimacy applies, the court must proceed to the best interests analysis before deciding whether to order a test ( see Matter of Mario WW. v Kristin XX. , 149 AD3d 1227, 1228 [2017]).
cited Cited as authority (rule) Matter of Fahima A. v. Shah A.
N.Y. App. Div. · 2017 · confidence medium
Nevertheless, the “paramount concern” in a paternity proceeding is the child’s best interests (Matter of Mario WW. v Kristin XX., 149 AD3d 1227, 1227 [2017] [internal quotation marks omitted]).
discussed Cited "see" Matter of Montgomery County Dept. of Social Servs. v. Jose Y.
N.Y. App. Div. · 2019 · signal: see · confidence high
Therefore, "[p]ursuant to Family Ct Act § 532 (a), a genetic marker test may not be ordered if it is not in the best interests of the child on the basis of . . . equitable estoppel" ( Matter of Schenectady County Dept. of Social Servs. v Joshua BB. , 168 AD3d 1244 , 1244 [2019] [internal quotation marks and citation omitted]; see Matter of Mario WW. v Kristin XX. , 149 AD3d 1227, 1227 [2017]).
Retrieving the full opinion text from the archive…
In the Matter of Mario WW.
v.
Kristin XX.
Appellate Division of the Supreme Court of the State of New York.
Apr 6, 2017.
149 A.D.3d 1227
Aarons, Garry, McCarthy, Mulvey, Rose.
Cited by 8 opinions  |  Published
Garry, J.

Appeal from an amended order of the Family Court of Tompkins County (Rowley, J.), entered September 17, 2015, which dismissed petitioner’s application, in a proceeding pursuant to Family Ct Act article 5, to adjudicate petitioner as the father of a child born to respondent Kristin XX.

Respondents, Kristin XX. (hereinafter the mother) and Brad XX. (hereinafter the husband), were married in 2009 and have resided together since then. Shortly after the mother gave birth to a child in 2014, petitioner commenced this paternity proceeding alleging that he is the child’s biological father. The petition requested an order for genetic testing, which respondents opposed on the grounds that the husband was presumed to be the child’s father and that genetic testing would not be in the child’s best interests. Respondents moved to dismiss the petition. Following a hearing, Family Court granted respondents’ motion and dismissed the petition based solely upon the presumption of legitimacy, without making a determination as to whether genetic testing would be in the child’s best interests. Petitioner appeals.

A court’s “paramount concern” in a paternity proceeding is the child’s best interests (Matter of Kristen D. v Stephen D., 280 AD2d 717, 719 [2001]; see Matter of Ettore I. v Angela D., 127 AD2d 6, 14 [1987]). The governing statute provides that an application for genetic testing shall be denied when a court[*1228] makes a written finding that testing “is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman” (Family Ct Act § 532 [a]; see Family Ct Act § 418 [a]). We agree with petitioner that, as he made the requisite threshold showing of “a nonfrivolous controversy as to paternity” (Prowda v Wilner, 217 AD2d 287, 289 [1995]), 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 (see id. at 290).[1] 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 (see Hammack v Hammack, 291 AD2d 718, 719-720 [2002]; Matter of Anthony M., 271 AD2d 709, 711 [2000]).[2]

The testimony established that respondents were still married and living together at the time of petitioner’s application, and that the child, who was approximately seven months old when the hearing was completed, had lived with respondents since birth and had never met petitioner. The mother testified that she and the husband believed that the husband was the child’s biological father, and that the husband was willing to raise the child as his own. Notably, the husband did not testify, but merely submitted an affidavit, briefly averring that he was happy with the child’s birth, was named on the child’s birth[*1229] certificate, and held himself out to be the child’s father. No evidence was offered as to the quality of his relationship with the child or the effect, if any, of uncertainty as to his biological paternity upon that relationship. Further, and significantly, the hearing did not address whether genetic testing could cause trauma to the child by potentially identifying petitioner as the child’s biological father, thus disrupting the stability of the child’s existing family and, as stated in cases involving equitable estoppel, interfering with “an already recognized and operative parent-child relationship” (Matter of Lorie F. v Raymond F., 239 AD2d 659, 660 [1997]; accord Matter of Kristen D. v Stephen D., 280 AD2d at 719).

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 (see Prowda v Wilner, 217 AD2d at 290-291; Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1135 [2006]). Petitioner’s remaining contentions are rendered academic by this determination.

McCarthy, J.P., Rose, Mulvey and Aarons, JJ., concur.

Ordered that the amended order is reversed, on the law, without costs, and matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this Court’s decision.

1

We recognize that, in the larger context of domestic relations law, the significance of the presumption of legitimacy as it applies in the new arena of same-sex marriages is an evolving area of law (see e.g. Matter of Kelly S. v Farah M., 139 AD3d 90, 100-104 [2016]; Wendy G-M. v Erin G-M., 45 Misc 3d 574, 592-596 [Sup Ct, Monroe County 2014]; see generally Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1 [2016]).

2

The difficulty of the conflict presented is demonstrated by the fact that the two separate attorneys for the child who have acted in this matter — both of whom were compelled to substitute their judgment for that of the very young child — took opposite positions.