Maurice J. Cusick
Judith P. Cusick.
County Family Court (K 09-728) Associate Justice Stephen J.
Plaintiff: Maurice Cusick, Pro Se.
Defendant: Stephanie P. McConkey, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
MAUREEN MCKENNA GOLDBERG, ASSOCIATE JUSTICE
case came before the Supreme Court on May 9, 2019, on appeal
by the plaintiff, Maurice J. Cusick (Maurice or plaintiff),
from a Family Court postjudgment order in favor of his former
wife, Judith P. Cusick (Judith or defendant). This appeal
stems from Judith's motion seeking an order requiring
Maurice to submit to limited genetic testing pursuant to Rule
35 of the Family Court Rules of Domestic Relations Procedure.
On appeal, the plaintiff argues that, by ordering him to
submit to genetic testing, the hearing justice violated his
right to privacy and to due process, and also committed an
abuse of discretion by relying on factual findings that,
according to plaintiff, overlooked and misconceived material
evidence and otherwise were clearly wrong. For the reasons
set forth in this opinion, we affirm the order of the Family
appeal, we are presented with an acrimonious post-divorce
battle in the Family Court concerning the welfare of the
parties' children. In March 2017, plaintiff's former wife
filed a Rule 35 motion seeking an order from the Family
Court compelling plaintiff to submit to genetic testing for
the benefit of the parties' minor children. In March 2016,
plaintiff was diagnosed with a genetic heart condition known
as Brugada Syndrome, a genetic disorder, that poses
significant risks including ventricular arrhythmias that can
result in sudden death. It is undisputed that Brugada
Syndrome is a hereditary disorder.
motion was heard by a Family Court justice on July 14 and 21,
2017. Medical geneticist Mari Mori, M.D. testified about the
preferred reasons for genetic testing for Brugada Syndrome.
She explained the precautions that someone at risk for
Brugada Syndrome must take, which include avoidance of
environmental stimuli leading to irregular heartbeat, such as
fever, high temperature locales, and certain medication.
Additionally, Dr. Mori explained that genetic testing of
plaintiff to determine whether his children are at risk for
Brugada Syndrome is the preferred diagnostic path because, if
the genetic change that plaintiff carries can be identified,
then the children can be tested for that specific variant.
Alternatively, Dr. Mori also explained that, if genetic
testing of plaintiff is not undertaken, then a sodium blocker
EKG can be used to diagnose the children; however, there is a
high risk that this could produce a false-negative because an
EKG change could develop over time.
defendant was the next witness. When questioned why she
wanted plaintiff to undergo genetic testing, defendant
"I am trying to get as much information as possible for
the treating physicians of our children so that they can
either be ruled out for Brugada Syndrome or get the medical
care that would be necessary and appropriate. I don't
want them to have to undergo annual testing. I don't want
them to have to continue to live with the uncertainty of
whether or not they have the diagnosis. I want to optimize
the information flow so that they can get the medical care
that would be necessary."
defendant further testified about her concerns relating to
their young son, who had been diagnosed with autism, and
whether he could undergo a prolonged medical examination, as
well as his ability to effectively communicate any internal
symptoms he may experience, such as chest pains. She also
explained that, since plaintiff was diagnosed with Brugada
Syndrome, the children have become increasingly aware of
their mortality and have expressed concerns about
participating in sports and other activities.
plaintiff also testified and, when asked why he refused to
undergo this testing, he offered the following:
"I have had many instances where things I have revealed
to Judy have been used against me so I really don't want
her involved in my medical condition. * * * I don't want
to trouble the kids. If I had Brugada, I grew up in East
Greenwich and I had no trouble all the way up into my
30's or 40's so I didn't think it was worth
causing anxiety or trouble in the kids, and I also am not an
advocate of giving up my genetic material for testing ...