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In a case of first impression, an appeals court in Brooklyn Wednesday said a Family Court judge cannot immediately order a genetic test when a father who has admitted paternity waits longer than 60 days to claim that the admission was made under duress. Instead, a unanimous panel of the Appellate Division, 2nd Department, said the court must first have a hearing to determine whether the allegations of fraud, duress or material mistake are valid. And if fraud, duress or a material mistake is established, the Family Court must then conduct another hearing to determine if a genetic test is in the best interest of the child, the appeals court said. Justice Barry A. Cozier, writing for the court in Matter of Westchester County Department of Social Services, 2004-03039, said the ruling tracked the “obvious and natural meaning” of Family Court Act �516-a(b). The decision arises from a paternity suit involving Robert Ross, a rap artist known as Black Rob who earned $2.5 million from sales of an album in 2000. In 1999, Ross executed an acknowledgement of paternity with Melissa Boscia for their daughter Kayli, who was born out of wedlock. Over the next five years, however, the couple fought over child support and Ross missed several court appearances, at one point resulting in a warrant for his arrest, and he was briefly incarcerated. CHILD SUPPORT ARREARS In February 2004, a support magistrate judge awarded the mother and daughter $420,000 in arrears and ordered Ross to post an undertaking of $120,000 for 12 months of child support. But at a confirmation hearing before Family Court Judge Rory J. Bellantoni, Ross made an oral application for a genetic marker test and challenged his acknowledgement of paternity on grounds of fraud and duress. Bellantoni found that Ross had knowingly disregarded his child support obligations. However, he also directed Ross, Boscia and the child to submit to the genetic test, without considering the issue of fraud or the best interests of the child. In so doing, the judge held that Family Court Act �516-a(b) required a court to order a test after paternity was challenged and only required a father to prove fraud or duress after the results of the test were obtained. In reversing that ruling yesterday, the 2nd Department said a Family Court should conduct hearings on fraud and duress, as well as the best interests of the child, before ordering a genetic test. Cozier noted that had the test excluded Ross as a father, the court would be required to vacate his acknowledgement of paternity in the absence of any showing of fraud or duress. The outcome, he said, would be “contrary to the express language” of the statute. “While FCA �516-a(b) explicitly provides that a party seeking to challenge a voluntary acknowledgment more than 60 days following its execution has the burden of proof in establishing fraud, duress, or material mistake of fact, the Family Court’s interpretation herein of the statute would result in vacatur of the acknowledgment of paternity upon a ground other than fraud, duress, or material mistake of fact,” Cozier wrote. “In addition, such an interpretation of FCA �516-a(b) would negate the requirement that the respondent carry the burden of proof, as well as render the 60-day statutory limit of no force or effect.” NATURAL, OBVIOUS MEANING The judge added: “Although FCA � 516-a(b) is silent as to whether the Family Court is required to conduct a hearing on fraud, duress, or material mistake of fact before ordering a [genetic test], the most natural and obvious meaning of the statutory provision at issue is that the court shall order a [test] and make a finding of paternity only if it is appropriate.” The judge also stressed that the best interest of the child must be considered after any fraud was found, noting that Kayli, who was nearly 5 years old at the time of the paternity challenge, recognizes Ross as her father and had a relationship with him and other members of his family. In such a case, the court said, the doctrine of equitable estoppel may be invoked to preclude a father from denying paternity to avoid support obligations. Justices Robert W. Schmidt, Thomas A. Adams and Sondra Miller concurred on the ruling. Stacey Dolgin-Kmetz and Brendan J. McGrath of the county attorney’s office in Westchester represented the county’s Department of Social Services. Ross filed a letter that served as his brief and was unrepresented on appeal. There was no oral argument.

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