DNA evidence allowed in post-death paternity suit.

A New York family court judge handling an unusual DNA evidence case made a run for the goal of bringing the law in line with rapid medical advances. Then she handed the ball to the state legislature, hoping it will complete the action that started in her Queens courtroom last year.

In a case of first impression, Judge Mary Ellen Fitzmaurice in Queens found that DNA tests on a dead man's preserved blood could be admitted into evidence in a paternity case under "reasonable" circumstances. (Anne R. v. Francis C (deceased), No. P-08812/92 (N.Y., Queens County Fam. Ct. Oct. 24, 1995).

Fitzmaurice did not stop there. She also implored the legislature to change the state's paternity laws to give guidance to courts on using DNA evidence in postdeath proceedings.

"The judge did a great thing," said prevailing plaintiff's attorney Phillip Milone of Forest Hills, New York. "What nerve--the judiciary telling the legislature what it ought to do. Usually it's the other way around. What a great ruling for children's rights."

Francis C. was shot to death in 1992 while working as a security guard in Suffolk County, New York. The county coroner retained frozen blood samples from his body, which is a routine procedure in homicide cases.

Anne R.--who had a longtime sexual relationship with Francis while he was married to another woman--asked that the blood's DNA be tested so the court could determine paternity for her daughter. The child, Megan, was nine years old when Francis died.

Francis's widow, Margaret C., challenged the suit. She argued that Anne did not have standing to sue and, separately, that any DNA tests made posthumously would be inadmissible under New York law.

The court rejected both arguments, finding that Anne proved Francis had acknowledged paternity through his actions--such as referring to Megan as his daughter and attending her birthday parties--while Megan was growing up. And, Fitzmaurice wrote, "nothing in Family Court Act [sections]532 prohibits admission of post-death blood results into evidence. Decedent's blood was already drawn and available; therefore ordering post-death DNA tests was not unreasonable. "

The decision cleared the way for Anne to receive $700 a month in Social Security death benefits on Megan's behalf.

The court then addressed the lack of guidance New York paternity statutes offer in using DNA evidence in post-death proceedings. "The advances made in DNA testing as well as its acceptability in the legal and scientific community make it a useful tool in determining paternity in post-death proceedings," Fitzmaurice wrote.

However, she urged the legislature to amend the paternity laws so that posthumous DNA tests could be granted on the motion of any party or the court. This, she said, would allow the legislature to set "specific parameters" for using DNA evidence.

"Until such time as the legislature acts, this area will be meshed in a quagmire of remedial and possibly conflicting judicial responses," Fitzmaurice said.