Com'r of Social Services of City of New York, In re

• Decision Date: 28 September 1973
• Citation: 75 Misc.2d 971,348 N.Y.S.2d 831
• Court: New York Family Court
• Parties: In the Matter of COMMISSIONER OF SOCIAL SERVICES OF the CITY OF NEW YORK (Cora Brunson) Petitioner, v. James S., Respondent.

Page 831

348 N.Y.S.2d 831

75 Misc.2d 971

In the Matter of COMMISSIONER OF SOCIAL SERVICES OF the CITY OF NEW YORK (Cora Brunson) Petitioner, v. James S., Respondent.

Family Court, City of New York, Bronx County.

Sept. 28, 1973.

Norman Redlich, Corporation Counsel, (New York City, Archibald H. Broomfield, Asst. Corp. Counsel, New York City, of counsel), for petitioner.

Martin B. Adelman, New York City, for respondent.

DECISION

RICHARD M. PALMER, Judge:

A hearing has been held on two paternity petitions which between them allege that respondent is the father of two girls, one born on Dec. 18, 1965 and the other born on March 18, 1967. The older is named Gale and the younger Margaret.

The only witness at the hearing was Cora B., the mother. The following is some of her direct testimony.

Petitioner's Case

The mother is 31 years old and has never been married. She met the respondent at a dance in 1964. They started to have sexual intercourse in February of 1965 at the Royal Hotel in Manhattan and continued to once or twice a week to August 1, 1965 (4 1/2 months before the birth of Gale).

When the mother told respondent of her pregnancy, he said he was married and did not want any children so that she should have an abortion. She tried to but failed.

Respondent brought her gifts in the hospital in December.

After the birth of Gale sexual intercourse was resumed in March 1966 at the mother's apartment, at West 116th Street, in Manhattan. Relations continued for 2 or 3 months. The mother's last period before the birth of Margaret was in June 1966 and she had intercourse with respondent one time afterward.

The mother swore that respondent was the only man she had sexual intercourse with from Feb. 1, 1965 to the birth of Gale on Dec. 18, 1965 and from Jan. 1, 1966 to the birth of Margaret on March 18, 1967.

Since the birth of Margaret respondent has had little to do with the mother. However, respondent has come to visit Gale a number of times. He has never come to visit Margaret.

Respondent's Defense

The defense was made by cross-examination of the mother.

The mother at first denied that she had ever told anyone that a man named Edward C. was the father of Margaret. Then when confronted with the Harlem Hospital records which showed she had so named him, she mumbled that she did not remember.

In the bill of particulars the mother disclosed that in addition to Gale and Margaret she had had one other child, Christine, born on Sept. 19, 1970. In her direct testimony the mother added a fourth child, Lenore, born on September 18, 1960. At the start of cross-examination the mother testified she had had 5 pregnancies. She then admitted that she had had a 5th child named Eugene, born in 1963.

On a re-cross-examination, the mother admitted to having had a 6th child named Jeffrey born in New Jersey in 1961. None of the six was born in wedlock.

At the close of the hearing the court ruled that the petitioner's case as to the second child, Margaret did not satisfy the requirement that the proof in a paternity proceeding be 'entirely satisfactory' or 'clear and convincing' as stated in Commissioner of Public Welfare v. Ryan, 238 App.Div. 607, 608, 265 N.Y.S. 286, 288 (1st Dept. 1933) and in many other cases before and after. It was the opinion of the court that the evidence that the mother had originally named another man as the father together with her false testimony as to the number of children she had had prevented the petitioner's proof from being entirely satisfactory or clear and convincing in the legal sense. The petition as to Margaret was thus dismissed at the hearing (dkt. P--789/72).

Decision was reserved as to the petition concerning Gale because there had been no evidence that the mother had ever named another man as the father and because there had been evidence to distinguish the two cases in the testimony of the mother that respondent had visited Gale but not Margaret.

Arguments of Defense Counsel

The attorney for the respondent has submitted a brief and argued that the petition as to Gale ought to be dismissed on the grounds of contradictory testimony, lack of corroboration, promiscuity of the mother and delay in prosecution.

The assistant corporation counsel has submitted a letter in answer to these arguments point by point.

The arguments of respondent's attorney based on lack of corroboration, promiscuity and delay in prosecution are not compelling--at least not as separate defenses.

There is no requirement that a mother's testimony identifying a respondent as the father of her child be corroborated. See Matter of Anne K. v. Richard L., 34 A.D.2d 1036, 311 N.Y.S.2d 319 and 35 A.D.2d 624, 314 N.Y.S.2d 175 (3rd Dept. 1970); Matter of Greenberg v. Colman, 32 A.D.2d 913, 302 N.Y.S.2d 381 (1st Dept. 1969); and Schatkin 'Disputed Paternity Proceedings' (4th ed. 1967) pp. 75 and 669; cf. Matter of HH v. II, 31 N.Y.2d 154 at 158, 335 N.Y.S.2d 274, at 276, 286 N.E.2d 717, at 719 (1972). On the other hand, it is to be recognized that a petitioner who does not present any corroboration runs a real risk of not persuading the court to 'entire satisfaction'.

The admissions of the mother, a 31 year old woman, that in addition to the two children in these proceedings she had conceived four other children with four different men do not show her to have been promiscuous in the sense of having indiscriminate sex with two or more men in any given period of time. It is one thing for a woman to have a series of intimate relationships, each with one man lasting months or years (cf. Matter of Joan D. v. Thomas P., 39 A.D.2d 759, 332 N.Y.S.2d 461 (2nd Dept. 1972)). It is another thing for her to have relationships with two or more men in one short period of time such as a period of ovulation. Evidence of the latter kind of promiscuity is severely damaging, if not fatal, to a petitioner's case. See Matter of Rebmann v. Muldoon, 23 A.D.2d 163, 259 N.Y.S.2d 257 (1st Dept. 1965); Matter of Wickham v. Barbera, 279 App.Div. 953, 110 N.Y.S.2d 762 (3rd Dept. 1952), and the discussion of the defense of exceptio plurium concubentum in Clark 'Domestic Relations' (1968) p. 167. Cf. Matter of Huber v. Fedison, 35 A.D.2d 1078, 316 N.Y.S.2d 487 (4th Dept. 1970); Matter of Olive B. v. Gilbert L., 9/10/71 N.Y.L.J. 18/3 (Fam.Ct. Kings Co. 1971); and Matter of Commissioner of Welfare v. Ivan R., 3/20/73 N.Y.L.J. 18/6 (Fam.Ct. Kings. Co. 1973).

The delay of six years since the birth of Gale to the date of the petition is not fatal to petitioner. Delay in the making and presentation of a paternity petition by a woman who is being supported with her children by public assistance is of limited significance. Cf. Matter of Commissioner of Welfare v. Jones, 73 Misc.2d 1014, 343 N.Y.S.2d 661 (Fam.Ct. Queens Co. 1973) and Doe v. Lavine, 347 F.Supp. 357 (S.D.N.Y.1972).

The argument of respondent's attorney going to the established disregard of the mother to her oath to testify truthfully is discussed in connection with the next point.

Inference From Silence of Respondent

The difficult question in this case is whether the court may draw an inference against the respondent from his failure to deny the mother's testimony that he is the father of Gale. Her testimony as to Gale had not been weakened by any evidence (as in the case of Margaret) that she had previously named another man as the father. In fact, her assertion that respondent is the father of Gale was buttressed by the testimony that the respondent had bestowed a form of recognition on Gale by coming to visit that child only.

There is a statutory provision on testimony by the respondent in Family Court Act sec. 531. It provides in part that

'. . . the respondent shall be competent to testify but the respondent shall not be compelled to testify. . . .'

There are at least two possible constructions that might be given to this provision.

One construction, going back to the quasi-criminal antecedents of paternity proceedings which were tried in criminal courts in this city before 1962 (see, now Family Ct. Act (L.1962, ch. 686), § 511), is that the respondent has a privilege similar to that of a defendant in a criminal prosecution. Such a defendant has a privilege against self-incrimination under art. I, sec. 6 of the State Constitution. No inference unfavorable to him may be drawn from his use of the privilege, see Criminal Procedure Law sec. 60.15(2).

The other construction of sec. 531 of the Family Court Act is that it merely gives the respondent a privilege to decline to testify if called as a witness by the petitioner. Cf. Matter of Schreck v. Long, 25 A.D.2d 599, 266 N.Y.S.2d 1017 (3rd Dept. 1966); Matter of Howard v. Robinson, 32 A.D.2d 837, 302 N.Y.S.2d 347 (2nd Dept. 1969); and Matter of Doe v. Roe, 40 Misc.2d 148 at 150, 242 N.Y.S.2d 742, at 744 (Fam.Ct.N.Y.Co.1963). Under this construction an inference unfavorable to the respondent may be drawn from his failure to call himself as a witness.

The case law is not clear as to which construction of sec. 531 should be adopted. Counsel did not argue the point at the hearing or in their post trial submissions.

There are many cases which might be cited in support of the broader construction which favors respondents generally. Thus in People on Complaint of Fischer v. Jones, 101 N.Y.S.2d 317 (Children's Ct.Schen.Co.1950) it was said:

'Since the proceedings of this nature are quasi-criminal the defendant's neglect or refusal to testify does not create any presumption against him. . . . on unfavorable inference may be drawn against him because he has not testified' (p. 320).

The court dismissed the petition on the merits after a trial.

The Fischer case was cited in Matter of Fitzsimmons v. De Cicco, 44 Misc.2d 307 at 310, 253 N.Y.S.2d 603 at 607 (Fam.Ct. Ulster Co. 1964) and in Matter of Bayne v. Willard, 46 Misc.2d 1079 at 1081, 261 N.Y.S.2d 793, at 795 (Fam.Ct.N.Y.Co.1965), each time for the proposition that respondent's...