Thoms v. Thoms


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Docket Number: 2004-IA-02429-SCT

Supreme Court: Opinion Link
Opinion Date: 05-11-2006
Opinion Author: Cobb, P.J.
Holding: Affirmed and Remanded

Additional Case Information: Topic: Custody - Paternity test - Best interest of child - Section 93-9-21(2) - Unreasonable search and seizure
Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Graves and Dickinson, JJ.
Non Participating Judge(s): Diaz and Randolph, JJ.
Procedural History: Interlocutory Appeal
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 12-06-2004
Appealed from: Oktibbeha County Chancery Court
Judge: Robert L. Lancaster
Disposition: William Russell Thoms (Rusty) appeals an Order for Genetic Testing
Case Number: 04-440

  Party Name: Attorney Name:  
Appellant: William Russell Thoms




MARTY CRAIG ROBERTSON



 

Appellee: Hank Thoms H. J. DAVIDSON, JR.  

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Topic: Custody - Paternity test - Best interest of child - Section 93-9-21(2) - Unreasonable search and seizure

Summary of the Facts: Hank Thoms filed a Petition for Determination of Paternity and for Other Relief seeking to know whether he was the father of a child whom his cousin, William Russell Thoms, had been raising as his own since birth. The chancery court ordered Hank, the child, and Wendy Thoms, the natural mother, to submit to genetic testing, and further ordered that if the test indicated Hank as the probable father, William must also be tested. William filed an interlocutory appeal which the Court granted.

Summary of Opinion Analysis: William argues that the court erred in ordering genetic testing because the court did not first engage in fact-finding to determine whether a paternity test would be in the child’s best interest. However, he presents no authority which supports his argument that the best interest determination must be made first, before the genetic testing is done. Hank correctly argues that the best interest of the child should be considered only after the results of the genetic test. Under section 93-9-21(2), in a proceeding to establish paternity, upon motion by either the plaintiff or defendant for an order requiring blood tests, the trial judge must grant the motion. Even if a trial court determined it was not in the child’s best interests to require a paternity test, all that is necessary, under the statute as it currently exists, is for either the plaintiff or defendant in a suit regarding paternity to move for a test to be done. No discretion is afforded. William also argues that requiring him to submit to DNA testing is an unreasonable search and seizure under the United States and Mississippi Constitutions, but he cites no law that supports this contention. The court order requiring William to submit to testing is not absolute; instead, it is dependent on the outcome of Hank’s results. Thus this issue is premature and not ripe for appellate review.


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