IN RE: Vela CORBETT (1999)

In a child support proceeding pursuant to Domestic Relations Law former article 3–A, the appeal is from an order of the Family Court, Queens County (Fitzmaurice, J.), dated July 30, 1997, which dismissed the proceeding.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith.

This proceeding under the former Uniform Support for Dependents Law (Domestic Relations Law repealed and replaced by Uniform Interstate Family Support Act [Family Ct. Act article 5–B] ) was commenced on behalf of the mother, an Alabama resident, in order to obtain child support from the respondent, a New York resident.   Although the respondent did not dispute that he and the mother were married when the subject child was born, he alleged that the mother told him he was not the child's father.   The Family Court ordered the mother to appear in the proceeding and, when she failed to appear, dismissed the petition.

We reverse and reinstate the petition.   Pursuant to the statutory scheme in effect at the time the proceeding was commenced, the Family Court was required to notify the initiating state, the State of Alabama, of the respondent's defense, and permit the mother to give testimony in a court in Alabama (see, Domestic Relations Law former § 37[6–8];  Mead v. Nezolosky, 256 A.D.2d 347, 683 N.Y.S.2d 270;  State of Utah v. Robert XX., 203 A.D.2d 648, 609 N.Y.S.2d 703).   The Family Court also had the authority to notify the initiating state that blood tests of the mother and the child were required, and to order the respondent to submit to a blood test (see, Domestic Relations Law former§ 37[19] ).   If the proof indicated that the presence of either or both of the parties was not necessary, the Family Court could adjudicate the issue of paternity (see, Domestic Relations Law former § 37 [5];  Mead v. Nezolosky, supra;  Matter of Darla E. v. Barry F., 222 A.D.2d 857, 635 N.Y.S.2d 715;  Matter of Karen B. v. Frederic C., 217 A.D.2d 658, 629 N.Y.S.2d 485;  Matter of Kyra D.G. v. Jeffrey W., 203 A.D.2d 569, 611 N.Y.S.2d 225).   Under the circumstances, the Family Court erred in dismissing the petition based on the mother's failure to appear personally without first affording her the opportunity to testify in the Alabama court (see, Mead v. Nezolosky, supra).

MEMORANDUM BY THE COURT.