blood grouping test in New York

1995In this regard, "[t]he Supreme Court has the power and may pursuant to CPLR 3121 (a), in its discretion, order a blood-grouping test in any action 'where the legitimacy of a child born during wedlock is questioned’ ” (Vito L. v Filomena L., 172 AD2d 648, 650 , quoting Kwartler v Kwartler, 291 NY 689, 690 ).

1991The Supreme Court has the power and may pursuant to CPLR 3121 (a), in its discretion, order a blood-grouping test in any action "where the legitimacy of a child born during wedlock is questioned” (Kwartler v Kwartler, 291 NY 689, 690 ; see, Golser v Golser, 115 AD2d 695, 698 ; Michaella M.

2007A child's best interests "are not served by permitting, at [a] late juncture, a disruption of the family relationships which he has come to know and rely on for so long a time" ( Glenn T. v. Donna U. , 226 AD2d 803 , 640 NYS2d 297 ), especially considering the immeasurable value of "an already operative parent-child relationship" ( Matter of Lorie F. v. Raymond F., supra at 661, 657 NYS2d at 236 , citing Matter of Baby Boy C. , 84 NY2d 91, 102 , 615 NYS2d 318, 323 , 638 NE2d 963, 968 ). "[C]ommon sense, public policy, reason and the overriding consideration for the welfare of the child will ba

1984It is beyond dispute that our courts have the power to direct a blood-grouping test in an action where the legitimacy of a child is in issue (Kwartler v Kwartler, 291 NY 689 ; Hill v Hill, 20 AD2d 923 ; O’Brien v O’Brien, 4 AD2d 867 ; Anonymous v Anonymous, 1 AD2d 312 ).

1994H. v P., 90 AD2d 434 ; Matter of Montelone v Antia, 60 AD2d 603 ).

1981In affirming the denial of the blood-grouping test, the Appellate Division stated (supra, p 924): “Common sense, public policy, reason and the overriding consideration for the welfare of the child will bar a wife from bastardizing her child where, as here, she lived with her husband as his wife during the period of conception and birth of the child *** all the while concealing from him the adultery to which she now confesses for the sole purpose of securing the child’s custody.” (See, also, Matter of Montelone v Antia, 60 AD2d 603 ; Brite v Brite, 61 Misc 2d 10 ; Matter of Time v Time, 59 Misc

1991M. v Abdel Monem El G., 98 AD2d 464, 466 ).

1986M. v Abdel Monem El G., 98 AD2d 464, 466 ).

1988(See, Matter of Mary B. v George T., 58 AD2d 832 [2d Dept 1977].) Further, while there have been cases holding that the young age of a respondent is a factor in permitting a blood-grouping test subsequent to an admission of paternity, (see, Lascaris v Loomis, 105 Misc 2d 501, 503 , citing Matter of Leanna M. v Douglas J., 35 AD2d 551 ), there is no indication in the instant case that respondent is a naive youth, but to the contrary, all evidence indicates he is a competent adult.

1979Indeed, in Matter of Leanna M. v Douglas J. ( 35 AD2d 551 ) the Second Department permitted reopening of a paternity proceeding to the extent of directing, at the alleged putative father’s behest, a blood grouping test some four years after the order of filiation was entered.

1984It is beyond dispute that our courts have the power to direct a blood-grouping test in an action where the legitimacy of a child is in issue (Kwartler v Kwartler, 291 NY 689 ; Hill v Hill, 20 AD2d 923 ; O’Brien v O’Brien, 4 AD2d 867 ; Anonymous v Anonymous, 1 AD2d 312 ).

1977As to the branch of the motion which sought to compel plaintiff and the infant twins to submit to a blood grouping test, the moving papers contain sufficient facts to warrant the ordering of such a test (see Anonymous v Anonymous, 1 AD2d 312 ).

1981Such a test is a fundamental right (see Matter of Linda “RR” v Brent “SS”, 40 AD2d 908 ).

1978(Matter of Linda "RR” v Brent “SS” 40 AD2d 908 .) In the event a proceeding to determine paternity is brought before the child is born, the respondent is entitled to an adjournment until after the child is born if he moves for a blood-grouping test.

1981In affirming the denial of the blood-grouping test, the Appellate Division stated (supra, p 924): “Common sense, public policy, reason and the overriding consideration for the welfare of the child will bar a wife from bastardizing her child where, as here, she lived with her husband as his wife during the period of conception and birth of the child *** all the while concealing from him the adultery to which she now confesses for the sole purpose of securing the child’s custody.” (See, also, Matter of Montelone v Antia, 60 AD2d 603 ; Brite v Brite, 61 Misc 2d 10 ; Matter of Time v Time, 59 Misc

1978(Matter of Schneider v Schneider, 72 Misc 2d 423 ; Matter of Time v Time, 59 Misc 2d 912 .) In People v Doherty ( 261 App Div 86 ) the trial court denied the respondent’s motion for a blood-grouping test of himself, the mother and child.

1980(Matter of Elizabeth E. v Leary, 63 Misc 2d 857 .) The respondent also contends that the blood grouping test should be ordered because he was not represented by counsel during the previous proceedings.

1979It was observed by said court (p 551) that "[considerations of whether the * * * relief requested should be granted, i.e., a new trial of the paternity issue itself, may well be postponed until the completion of the blood test.” To reiterate, the endeavor by petitioner to set aside the filiation order was initiated within only 10 months after entry of such order (cf. Matter of Elizabeth E. v Leary, 63 Misc 2d 857 ).

1979Clark v. Rysedorph, 281 App. Div. 121 , 118 N.Y.S.2d 103 .” The following statutory enactments provide for blood grouping tests: sections 418 and 532 of the Family Court Act; CPLR 3121.

1979Clark v. Rysedorph, 281 App. Div. 121 , 118 N.Y.S.2d 103 .” The following statutory enactments provide for blood grouping tests: sections 418 and 532 of the Family Court Act; CPLR 3121.

2002Courts, however, have also recognized that a “person who participates in the merits of an action appears informally and confers jurisdiction on the court” (Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [citations omitted] [appellant conferred jurisdiction on Family Court when he submitted to a blood grouping test and asserted denials of his paternity through his attorney without raising jurisdictional objection]; see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C320:4, at 284 [“A defendant whose participation in an action reaches a certain level of activity

1995The appellant conferred jurisdiction on the Family Court when he submitted to a blood grouping test and asserted denials of paternity through his attorney without raising a jurisdictional objection (see, Matter of Rosso v Rosso, supra).

1995However, applying the doctrine of equitable estoppel, we find that, under the circumstances of this case, the error does not require reversal (see, Matter of Leon L. v Carole H., 210 AD2d 484 ; Matter of Ettore I. v Angela D., 127 AD2d 6 ).

1991Although the evidence may warrant the ordering of blood tests, the doctrine of equitable estoppel may be raised as a defense to preclude a party from being compelled to submit to a blood-grouping test (see, Matter of Ettore I. v Angela D., 127 AD2d 6 ; Golser v Golser, supra; see also, Matter of Sharon GG. v Duane HH, 95 AD2d 466, 468 , affd 63 NY2d 859 ).

1995Defendant’s request was made in a divorce action in Supreme Court and, therefore, the request is governed by CPLR 3121 (a), which gives the court discretionary authority to order a blood-grouping test in any action in which the blood relationship of a party is in controversy (see, Murtagh v Murtagh, 217 AD2d 538, 539 ; Vito L. v Filomena L., 172 AD2d 648, 650 ).

1995In this regard, "[t]he Supreme Court has the power and may pursuant to CPLR 3121 (a), in its discretion, order a blood-grouping test in any action 'where the legitimacy of a child born during wedlock is questioned’ ” (Vito L. v Filomena L., 172 AD2d 648, 650 , quoting Kwartler v Kwartler, 291 NY 689, 690 ).

1994H. v P., 90 AD2d 434 ; Matter of Montelone v Antia, 60 AD2d 603 ).

1985H. v P., supra; Matter of Montelone v Antia, 60 AD2d 603 ).

1984It is beyond dispute that our courts have the power to direct a blood-grouping test in an action where the legitimacy of a child is in issue (Kwartler v Kwartler, 291 NY 689 ; Hill v Hill, 20 AD2d 923 ; O’Brien v O’Brien, 4 AD2d 867 ; Anonymous v Anonymous, 1 AD2d 312 ).

1984(Kwartler v Kwartler, 291 NY 689 ; Hill v Hill, 20 AD2d 923 ; O’Brien v O’Brien, 4 AD2d 867 .) However, the court notes that said HLA test was performed prior to the commencement of the divorce proceeding wherein the issue of support was raised within the parameters of the law.

1981(Brite v Brite, 61 Misc 2d 10 , affd 34 AD2d 1109 .) The latter is governed by a variety of factors, but is an issue which at this stage of the proceeding the court will not consider.

1981In affirming the denial of the blood-grouping test, the Appellate Division stated (supra, p 924): “Common sense, public policy, reason and the overriding consideration for the welfare of the child will bar a wife from bastardizing her child where, as here, she lived with her husband as his wife during the period of conception and birth of the child *** all the while concealing from him the adultery to which she now confesses for the sole purpose of securing the child’s custody.” (See, also, Matter of Montelone v Antia, 60 AD2d 603 ; Brite v Brite, 61 Misc 2d 10 ; Matter of Time v Time, 59 Misc

1973(Family Ct. Act, §§ 418, 451; Matter of Oliver v. England, 48 Misc 2d 335 ; Matter of G. v. H., 34 A D 2d 860.) The Family Court has continuing jurisdiction- over any support order and may modify any order issued in the course of such proceeding.

1972S. 2d 261; Matter of Anonymous, 12 Misc 2d 781 ), but only where common sense and reason are outraged by a holding that it abides as where a blood-grouping test conclusively excluded the possibility that the husband could be the father of the child (Matter of Oliver v. England, 48 Misc 2d 335 ).

1972Perhaps the most widely cited case in these matters is Matter of Findley ( 253 N. Y. 1 ), which is most often cited in support of the application of the presumption, but which actually held it rebutted by the facts in that case, decided in 1930.

1969(Aug. 20, 1969, p. 12, col. 4) where Justice Castaldi of the Supreme Court, denied a motion for a blood grouping test, holding that “ To grant the defendant’s application after such an unconscionable delay would truly offend the conscience of the court.” (See, also, Matter of Time v. Time, 59 Misc 2d 912 .) In Matter of Findlay ( 253 N. Y. 1, 7-8 ) the court said “ the presumption [of legitimacy] will not fail unless common sense and reason are outraged by a holding that it abides ”. 2.

2007A child's best interests "are not served by permitting, at [a] late juncture, a disruption of the family relationships which he has come to know and rely on for so long a time" ( Glenn T. v. Donna U. , 226 AD2d 803 , 640 NYS2d 297 ), especially considering the immeasurable value of "an already operative parent-child relationship" ( Matter of Lorie F. v. Raymond F., supra at 661, 657 NYS2d at 236 , citing Matter of Baby Boy C. , 84 NY2d 91, 102 , 615 NYS2d 318, 323 , 638 NE2d 963, 968 ). "[C]ommon sense, public policy, reason and the overriding consideration for the welfare of the child will ba

2007A child's best interests "are not served by permitting, at [a] late juncture, a disruption of the family relationships which he has come to know and rely on for so long a time" ( Glenn T. v. Donna U. , 226 AD2d 803 , 640 NYS2d 297 ), especially considering the immeasurable value of "an already operative parent-child relationship" ( Matter of Lorie F. v. Raymond F., supra at 661, 657 NYS2d at 236 , citing Matter of Baby Boy C. , 84 NY2d 91, 102 , 615 NYS2d 318, 323 , 638 NE2d 963, 968 ). "[C]ommon sense, public policy, reason and the overriding consideration for the welfare of the child will ba

2002Courts, however, have also recognized that a “person who participates in the merits of an action appears informally and confers jurisdiction on the court” (Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [citations omitted] [appellant conferred jurisdiction on Family Court when he submitted to a blood grouping test and asserted denials of his paternity through his attorney without raising jurisdictional objection]; see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C320:4, at 284 [“A defendant whose participation in an action reaches a certain level of activity

2002Courts, however, have also recognized that a “person who participates in the merits of an action appears informally and confers jurisdiction on the court” (Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [citations omitted] [appellant conferred jurisdiction on Family Court when he submitted to a blood grouping test and asserted denials of his paternity through his attorney without raising jurisdictional objection]; see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C320:4, at 284 [“A defendant whose participation in an action reaches a certain level of activity