Fourth Department – Custody: Frost v. Wisniewski

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Appellate Division, Fourth Department – Custody – Paternity Test – Res Judicata

Frost v. Wisniewski

CAF 14-00650

Appealed from Family Court, Oswego County

Background: The petitioner appealed from an order dismissing his cross motion seeking a determination that he is the biological father of the subject child. The respondent signed an acknowledgment of paternity with respect to the child when the child was born. DNA testing later established that the petitioner was the child’s biological father. The petitioner filed a custody petition and, by default order, was awarded custody of the child. When the respondent sought visitation, the petitioner sought a paternity test and a direction that an amended the birth certificate be filed. It was denied.

Ruling: The Appellate Division reversed. The court held that it is in the best interests of the child for finality, stability, and consistency in family determinations. The Appellate Division noted the respondent’s non-opposition to the cross petition militated against the result reached by the court. Res judicata did not apply to the petitioner’s claims.

Stephanie N. Davis for the petitioner-appellant; Rosemarie Richards, attorney for the child