dissenting.
I respectfully dissent, as the facts found by the trial court compel a blood test to resolve scientifically the issue of Detwiler’s son’s paternal parentage.
During Detwiler’s marriage to Ogle, Ogle was twice incarcerated for felony possession of marijuana, as he had been before in 1978. Detwiler became addicted to crack cocaine and was imprisoned in 1995. Custody of the child was given to Ogle. In 1996, at the age of 13, the child was adjudicated delinquent for taking a firearm to school and was placed in a boot camp. See OCGA § 42-8-35.1.
In the spring of 1996 Detwiler’s mother, concerned for the child’s welfare, contacted Grice, informed him the child was his biological son, and admitted that she and Detwiler had deceived Grice in 1982 because they feared he would seek custody and take the child to Mexico. During Detwiler’s pregnancy, Grice had taken birth assistance classes and expressed a willingness to treat the child as his own, even though told it was not his. Detwiler, however, continued to seek a divorce and put her maiden name on the child’s birth certificate as the child’s surname.
Eight weeks after being informed that the child was his issue, Grice petitioned to legitimate the child and to be awarded custody. See OCGA § 19-7-22. He later amended the petition to include requests to establish paternity, see OCGA § 19-7-43 (a) (5), and for the court to order blood tests to resolve any doubt as to paternity, see OCGA § 19-7-45. Ogle, but not Detwiler, answered the petition. The court heard the petition on the merits. At the time of the hearing *284Ogle and Detwiler were engaged in a custody dispute. During the hearing, Ogle’s current wife (who was also the former wife of Detwiler’s brother) testified that Ogle had struck her on the head at least three times in the past six years, once requiring stitches, and that he had a drinking problem. Detwiler’s mother testified that the child does not get along with Ogle, they fight constantly, the child has run away, and Ogle abuses alcohol and takes drugs.
The court denied Grice’s petition on the basis that examining paternity was not in the child’s best interests.
Ogle contends that review of the court’s “best interests” decision is not necessary because Grice had the opportunity to establish paternity in 1983, abandoned that opportunity, and is barred by res judicata or collateral estoppel from seeking relief now. Ogle had raised res judicata in his answer and at the beginning of the hearing. The court orally denied the motion, and Ogle has not cross-appealed.
OCGA § 9-12-40 codifies the doctrine of res judicata: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” See McIver v. Jones, 209 Ga. App. 670, 672 (434 SE2d 504) (1993). “ ‘Collateral estoppel precludes readjudication of an issue previously adjudicated between the parties or their privies in another action.’ ” (Citation omitted.) Ghrist v. Fricks, 219 Ga. App. 415, 417 (1) (465 SE2d 501) (1995). “ ‘Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, and no litigant will be heard to complain unless it be made plainly to appear that the consent of the complaining party was obtained by fraud, or mistake.’ ” (Citation omitted.) Id. See also Dept. of Human Resources v. Johnston, 220 Ga. App. 477, 478 (1) (469 SE2d 525) (1996) (“[I]n the absence of fraud or mistake, where the issue of paternity has previously been decided, it cannot be relitigated.”).
Grice contends his failure to offer a defense or contest custody in his divorce from Detwiler was the result of the fraud perpetrated on him by Detwiler and her mother. The court found that the two women in fact had committed fraud in 1982 as to Grice’s paternity. Although Ogle argues Grice did not rely on the representations of Detwiler and her mother but rather on the investigations of his divorce attorney, Grice’s testimony clearly shows the former. Ogle’s argument that fraud has not been shown because it is not established the child was fathered by Grice ignores not only that such is the purpose of the blood test but also that Detwiler’s mother testified she and her daughter agreed to deceive Grice about paternity. The finding of fraud was amply justified. This Court cannot reject it and *285find otherwise. See Edwards v. Wilson, 185 Ga. App. 514, 515 (1) (364 SE2d 642) (1988). Such a fraud upon a divorcing spouse, upon the child, and upon the court itself during a later divorce proceeding not involving the same party is no shield against ascertainment of the truth when the fraud is discovered.
Thus, the holding in Ghrist, supra, does not control. There the putative father who attempted to relitigate the issue of paternity was a party to the fraud, and at the time of the divorce decree, he had all the knowledge he later claimed as the basis for changing the child’s paternity. Because of that knowledge, and his active participation with the mother in concealing the facts, collateral estoppel was appropriate. He was not defrauded. Grice, on the other hand, had no such knowledge but was the victim of the fraud and is in a situation reverse from Fricks’ as it pertains to this later attempt to establish paternity. The doctrines of collateral estoppel and res judicata do not apply. The conclusive presumption of law represented by these doctrines must bow to truth when it is established that the presumption is built on fraud. This principle is recognized in, among other cases, Ghrist, supra at 417; Dept. of Human Resources v. Johnston, supra; Macuch v. Pettey, 170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984); McDonald v. Hester, 115 Ga. App. 740, 741 (155 SE2d 720) (1967).
The trial court found fraud. This Court cannot challenge Grice’s reliance on the misrepresentation without substituting itself as factfinder. The trial court’s finding of fraud has not even been cross-appealed.
Moreover, the issue of whether the child was fathered by Grice was not adjudicated in the only proceeding in which Grice was a party, i.e., the divorce action brought by Detwiler, which Grice did not contest. It covered only their relationship, not Grice’s with the child. Likewise is the case of Dept. of Human Resources v. Johnston, supra, where the Court rejected application of the doctrine of res judicata because the evidence did not show that the issue of paternity had been previously litigated between the parties. In Ghrist, supra at 416-417, the divorce decree between Ghrist and Fricks expressly incorporated a settlement agreement referencing “their” minor child and setting out Ghrist’s visitation rights and support responsibilities.
The court’s decision whether to grant a petition for legitimation is within its discretion. Alexander v. Guthrie, 216 Ga. App. 460, 461-462 (1) (454 SE2d 805) (1995). Whether a blood test is to be ordered under OCGA § 19-7-45 is also a matter of discretion in cases such as this. The word in the statute is “may.” Nevertheless blood tests regarding paternity are judicially recognized as valuable contributors to the search for truth, as they “inject scientific objectivity into the pertinent inquiry.” Whitman v. State of Ga., 212 Ga. App. 523, 524 *286(442 SE2d 313) (1994). The significance of parentage-determination genetic testing is so highly regarded that a statutory rebuttable presumption has been created for certain results, and evidence of a refusal to submit is admissible to show that the alleged father is not precluded from parentage. OCGA § 19-7-46 (b) and (c).
Decided July 11, 1997. Jackson & Schiavone, Pattie J. Williams, for appellant. Gregory N. Crawford, for appellees.The court found and expressed concern about Ogle’s and Detwiler’s incarcerations and their effect on the child. There was no suggestion in the court’s order or remarks that Grice would be an unfit father, and no evidence was introduced indicating he would be. The court nonetheless concluded that, given the passage of time, it was not in the child’s best interests to open the question of his paternity. Not noted by the court was the uncontradicted testimony that the child has now been informed that Grice is his biological father and has made at least one attempt to telephone Grice, although he broke the telephone connection before Grice was on the line. Thus, as to the child, the issue of paternity is not closed in a very real and personal sense. It can be resolved by the simple expedient of a test. The length of time during which truth is deliberately hidden should not insulate it from exposure.
At the time of hearing, the child was almost 14 years of age. He has since passed that mark. In a custody case, a child of such age has the right to choose with which parent he wishes to live, unless the court determines that parent is not a fit and proper person to have custody. OCGA § 19-9-3 (a). No guardian ad litem was appointed. See OCGA § 19-7-44 (a). If Grice is the biological father, the child should have the right to make the statutory election. He should also be enabled to enjoy all the rights of sonship. The child’s interests are no less important, and should be no less cognizable in law, than his father’s.
The court abused its discretion in denying the requested blood test for the new evidence sought by Grice, which test the court found Ogle himself was willing to take, and in denying the legitimation petition without benefit of a blood test. Discovery of the fraud dissolved the conclusiveness which even the doctrine of res judicata provides. See Smith v. Ga. Dept. of Human Resources, 226 Ga. App. 491, 493 (1) (487 SE2d 94) (1997).
I am authorized to state that Presiding Judge McMurray joins in this dissent.