Constance G. v. Herbert Lewis L.

• Decision Date: 02 September 1986
• Citation: 119 A.D.2d 209,506 N.Y.S.2d 111
• Parties: In the Matter of CONSTANCE G. (Anonymous), Appellant, v. HERBERT LEWIS L. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 111

506 N.Y.S.2d 111

119 A.D.2d 209

In the Matter of CONSTANCE G. (Anonymous), Appellant, v. HERBERT LEWIS L. (Anonymous), Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 2, 1986.

Lloyd J. Nadel, Mineola, for appellant.

Singer & Garneau, Hempstead (Irving Singer of counsel), for respondent.

Before MOLLEN, P.J., and LAZER, MANGANO and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

BRACKEN, Judge.

In this contested paternity proceeding pursuant to Family Court Act article 5, the Family Court, after a hearing, found that the petitioner had failed to establish paternity by clear and convincing evidence and dismissed the proceeding. Although we are traditionally reluctant to disturb the findings of fact made by a hearing court (Matter of Joan G. v. Robert W., 83 A.D.2d 838, 441 N.Y.S.2d 709), we have reviewed the hearing record and conclude that the hearing court's findings in this case were contrary to the weight of the credible evidence. Therefore, we reinstate the petition and declare paternity.

According to the evidence adduced at the hearing, the petitioner was a married woman living with her husband during the time of probable conception. She gave birth to a male child on August 11, 1980. The petitioner and her husband both testified that they occupied separate bedrooms in the marital residence, and had not had sexual intercourse for approximately four years prior to the date of probable conception or thereafter.

Both the petitioner and the respondent testified to having had an ongoing sexual relationship and to having had sexual intercourse during the time of probable conception. In addition, a petitioner's witness testified that the respondent had admitted paternity of the child in the witness's presence on two occasions. The petitioner also introduced evidence of a life insurance policy on the life of the respondent which designated the child, denominated as the insured's "son", as the primary beneficiary, and the petitioner, denominated as his "son's mother", as the secondary beneficiary, and the respondent admitted that he had purchased and made payments on the policy. Indeed, the respondent conceded in court that there was a possibility that he was the father of the child, and he testified that he had admitted as much to his brother. The record also indicates that, notwithstanding the fact that the petitioner's husband permitted his name to be entered on the child's birth certificate, the respondent had largely assumed the role of father to the child. The petitioner introduced greeting cards signed with the respondent's initials containing endearments to her and, after the birth of the child, addressing her as "mother". The evidence also included photographs of the respondent with the child on the child's birthday and at Christmas, and the petitioner testified that the respondent visited the child on a regular and frequent basis.

In addition, the petitioner introduced the results of a human leucocyte antigen blood tissue test (hereinafter HLA test) and other blood tests indicating the likelihood of paternity for the respondent to be 99.63%, or "highly probable". However, no test results were produced by either party with respect to the petitioner's husband.

We conclude that the petitioner presented clear and convincing evidence that the respondent is the father of the child (see, Matter of Commissioner of Social Servs. [Patricia A.] v. Philip DeG., 59 N.Y.2d 137, 141-142, 463 N.Y.S.2d 761, 450 N.E.2d 681). Her testimony was credible and withstood challenge on cross-examination. It was corroborated by that of her husband and, to a significant degree, by that of the respondent, as well as by the scientific test results (see, Barber v. Davis, 120 A.D.2d 364, 502 N.Y.S.2d 19, revg. sub nom. Matter of Angela B. v. Glen D., 126 Misc.2d 646, 482 N.Y.S.2d 971).

The presumption of legitimacy, although one of the strongest and most persuasive known to the law, is nevertheless subject to the sway of reason (Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471). Stated otherwise, "the presumption will not fall unless common sense and reason are outraged by a holding that it abides" (Matter of Findlay, supra, at p. 8, 170 N.E. 471). The presumption, which arose in an era when true parentage could not be scientifically ascertained, "was never intended to suppress the truth and perpetuate a falsehood" (Sylvia B. v. Ben., 70 Misc.2d 572, 576, 334 N.Y.S.2d 229), and it is rebuttable just as any other presumption in the law (Matter of Findlay, supra, 253 N.Y. at p. 7, 170 N.E. 471; Dawn B. v. Kevin D., 96 A.D.2d 922, 923, 466 N.Y.S.2d 363; Matter of Joan G. v. Robert W., 83 A.D.2d 838, 839, 441 N.Y.S.2d 709, supra; Matter of Gorton v. Gorton, 123 Misc.2d 1034, 1038, 475 N.Y.S.2d 767).

In the present case, although it is uncontroverted that the petitioner was married and residing in the same home as her husband at the time of probable conception, she adduced competent evidence, through her own unimpeached testimony and that of her husband, of nonaccess (see, Family Ct. Act § 531). In addition, both the petitioner and the respondent testified to having had a sexual relationship at all times pertinent to the determination of paternity. While proof that a married woman has engaged in an adulterous relationship may not, without more, be sufficient to rebut the presumption of legitimacy (see, Matter...