The Art of Shaving for Follicle Tests

(CN) - A New Yorker who shaved his entire body to scuttle a court-ordered follicle test in a custody fight should not have been held in contempt, an appeals court ruled.

During a custody battle between Delilah Smith and Roberto De Paz Jr. in July 2012, a Nassau County family court judge ordered both parents to submit to follicle testing at their own expense.

After nearly a month, the court gave De Paz one more week to submit proof that he had taken the test. During that hearing, Smith's attorney asked the court to direct De Paz "not to cut his hair again until the hair follicle test is done."

The family court declined to make that order, however, stating that the person administering the test "will find a hair on his body wherever it is and have it tested."

De Paz appeared for the follicle test on Aug. 13 and paid for it, but he had shaved off all his body hair and the technician was unable to get a sample.

The court found De Paz in contempt the next day, despite a reminder from the man's attorney that there had never been an order not to shave.

Throwing De Paz in jail for 90 days, the judge noted that she had "clearly said on the record" that the tester "would be able to find a hair anywhere on his body."

De Paz stayed out of jail pending his appeal with the Brooklyn-based Second Judicial Department, which went in his favor earlier this month.

"Here, while the family court, in effect, found the father in contempt, for shaving his body hair in violation of its 'order' dated August 7, 2012, no such order was ever issued," the unsigned decision states.

"Contrary to the family court's determination, its statement in open court on August 7, 2012, that the individual designated to perform the hair follicle test would find a hair on the father's 'body wherever it is and have it tested' does not qualify as the lawful order of the court clearly expressing an unequivocal mandate which is necessary to support a finding of contempt," the judges added.

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