| Matter of Augustine A. v Samantha R.S. |
| 2016 NY Slip Op 02712 [138 AD3d 458] |
| April 7, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Augustine A.,
Respondent, v Samantha R.S., Appellant. |
Kenneth M. Tuccillo, Hastings on Hudson, for appellant.
Order, Family Court, Bronx County (Jodi E. Hirschman, S.M.), entered on or about April 10, 2014, which granted the petition pursuant to article 5 of the Family Court Act for an order of filiation declaring and adjudging petitioner to be the father of the subject child, unanimously reversed, on the law, without costs, the order of filiation vacated and the matter remanded to the Family Court for further proceedings consistent herewith.
The support magistrate prematurely ordered the parties to take a genetic marker test to determine whether petitioner was the father of the subject child. Although the respondent mother, acting without counsel, did not initially object to DNA testing or expressly raise an "equitable estoppel" issue, she informed the court that another man had formally acknowledged paternity and that the child's birth certificate was being amended to reflect that the child's surname had been changed to that man's name. Regardless of whether the acknowledgment of paternity was legally effective, these facts raised an issue concerning the child's best interests, which is the paramount concern in all cases involving the issue of paternity (Andrew T. v Yana T., 74 AD3d 687, 687 [1st Dept 2010]). Thus, it was error for the support magistrate to order DNA testing without first transferring the matter to a Family Court judge (see Family Ct Act § 439 [a]), to conduct a hearing to determine the issues of equitable estoppel and the child's best interests (see Family Ct Act § 532 [a]; Matter of Lovely M. [Michael McL.—Tracey M.], 70 AD3d 516 [1st Dept 2010]; Matter of Isaiah A.C. v Faith T., 43 AD3d 1048 [2d Dept 2007]).
Since any determination by the Family Court has the potential to prejudice the child's interests, appointment of an attorney to represent the best interests of the child will be necessary (Andrew T. v Yana T., 74 AD3d at 687; Matter of Darlene L.-B. v Claudio B., 27 AD3d 564 [2d Dept 2006]). Concur—Acosta, J.P., Renwick, Manzanet-Daniels, Kapnick and Webber, JJ.