Opinion
May 18, 1995
Appeal from the Family Court of Saratoga County (James, J.).
In June 1993, petitioner commenced this proceeding seeking child support from respondent. The petition alleged that the parties were married in 1990 and that in April 1993, petitioner gave birth to a daughter. Although the parties were still married at the time the petition was filed, the petition indicated that they were separated. Contending that he was not the child's father, respondent moved for an order directing that blood-grouping tests be done. Family Court appointed a Law Guardian for the child and heard oral arguments on respondent's motion. The Law Guardian, however, was not present. Family Court denied the motion, prompting this appeal by respondent.
Prefatorily, we note that insofar as the subject order was nonfinal, permission to appeal was required (see, Family Ct Act § 1112 [a]; Matter of Leromain v Venduro, 114 A.D.2d 634; cf., Matter of Nacey v Nacey, 116 A.D.2d 933). Nevertheless, we will exercise our discretion and, sua sponte, consider the appeal papers as including a request for permission to appeal and grant said request (see, Matter of Phyllis W. v Bernie X., 203 A.D.2d 694; Matter of Leromain v Venduro, supra).
Turning to the merits of the appeal, a party may contest the issue of paternity in a support proceeding and request by motion blood-grouping tests under Family Court Act § 418 (a). The tests shall be ordered unless Family Court, upon a written finding, indicates that it is not in the best interest of the child on the basis of, inter alia, equitable estoppel or the presumption of legitimacy (see, Family Ct Act § 418 [a]). Here, in our view, Family Court erred in summarily denying respondent's motion without a sufficient opportunity to be heard (see, Della Vecchia v Goffredo, 203 A.D.2d 511; Elizabeth A.P. v Paul T.P., 199 A.D.2d 1030; cf., Matter of Jeanne C. v Peter W.D., 134 A.D.2d 779, lv dismissed 71 N.Y.2d 994). The court did not set forth the grounds or basis for its decision and the present record is insufficient to determine the applicability of the doctrines relating to the presumption of legitimacy or equitable estoppel as well as the issue of the best interest of the child (see, Della Vecchia v Goffredo, supra). At the oral argument, both sides made various allegations but no testimony was taken and no evidence was submitted. In addition, the Law Guardian, although appointed, was not present (see, Golser v Golser, 115 A.D.2d 695; see also, Matter of Phyllis W. v Bernie X., 203 A.D.2d 694, supra). The matter must therefore be remitted for a hearing so that Family Court may make appropriate findings pursuant to Family Court Act § 418 (a) (see, Matter of Robert L.A. v Sharon A.R., 185 A.D.2d 977).
Mercure, White, Casey and Spain, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Saratoga County for further proceedings not inconsistent with this Court's decision.