|531-A||Testimony by telephone, audio-visual means or other electronic means.|
|532||Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests.|
|533||Adjournment on application of party.|
|534||Adjournment on motion of court.|
|535||Counsel for social services commissioner.|
S 531. Hearing. The trial shall be by the court without a jury. The mother or the alleged father shall be competent to testify but the respondent shall not be compelled to testify. If the mother is married both she and her husband may testify to nonaccess. If the respondent shall offer testimony of access by others at or about the time charged in the complaint, such testimony shall not be competent or admissible in evidence except when corroborated by other facts and circumstances tending to prove such access. The court may exclude the general public from the room where the proceedings are heard and may admit only persons directly interested in the case, including officers of the court and witnesses. S 531-a. Testimony by telephone, audio-visual means or other electronic means. (a) In any proceeding under this article, the court may permit a party or a witness to be deposed or to testify by telephone, audio-visual means, or other electronic means at a designated family court or other location: (i) where such party or witness resides in a county other than that of the family court where the case is pending and that of any contiguous county; provided, however, that for the purposes of this section, the five counties of New York city shall be treated as one county; (ii) where such party or witness is presently incarcerated and will be incarcerated on the date on which the hearing or deposition is scheduled and is not expected to be released within a reasonable period of time after the date on which the hearing is scheduled; or (iii) where the court determines that it would be an undue hardship for such party or witness to testify or to be deposed at the family court where the case is pending. (b) Any such deposition or testimony taken by telephone, audio-visual means or other electronic means in accordance with subdivision (a) of this section shall be recorded and preserved for transcription. Where a party or witness is deposed or testifies by telephone, audio-visual or other electronic means pursuant to this section, documentary evidence referred to by a party or witness or the court may be transmitted by facsimile, telecopier, or other electronic means and may not be excluded from evidence by reason of an objection based on the means of transmission. The chief administrator of the courts shall promulgate rules to facilitate the taking of testimony by telephone, audio-visual means or other electronic means. S 532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. (a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act. (b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party. (c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay. S 533. Adjournment on application of party. The court, on application of either party, may for good cause shown grant such adjournments as may be necessary. If an adjournment is granted upon the request of either party, the court may require the respondent to give an undertaking for appearance. S 534. Adjournment on motion of court. On its own motion, the court may adjourn the hearing after it has made a finding of paternity to enable it to make inquiry into the surroundings, conditions and capacities of the child, into the financial abilities and responsibilities of both parents or for other proper cause. If the court so adjourns the hearing, it may require the respondent to give an undertaking to appear. S 535. Counsel for social services commissioner. (a) The corporation counsel of the city of New York shall represent the social services commissioner of such city in all proceedings under this article in which the commissioner is the petitioner. (b) In any county outside the city of New York in which attorneys have been appointed pursuant to section sixty-six of the social services law, such attorneys may represent the social services commissioner of such county in all proceedings under this article in which the commissioner is the petitioner. (c) Except as provided in subdivision (b) of this section, in any county outside the city of New York, the county attorney, or an attorney designated by the county executive, if there be one, otherwise by the board of supervisors, shall represent the social services commissioner of the county in all proceedings under this article in which the commissioner is the petitioner. S 536. Counsel fees. Once an order of filiation is made, the court in its discretion may allow counsel fees to the attorney for the prevailing party, if he or she is unable to pay such counsel fees. Representation by an attorney pursuant to paragraph (b) of subdivision nine of section one hundred eleven-b of the social services law shall not preclude an award of counsel fees to an applicant which would otherwise be allowed under this section. Top of Page
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