La Croix v. Deyo

• Decision Date: 04 November 1981
• Citation: 113 Misc.2d 89,447 N.Y.S.2d 864
• Parties: In the Matter of the Paternity Petition of Ariel LA CROIX, Petitioner, v. Richard M. DEYO, Administrator of the Estate of Debra Campbell Deyo, Deceased, Respondent.
• Court: New York Family Court

Page 864

447 N.Y.S.2d 864

113 Misc.2d 89

In the Matter of the Paternity Petition of Ariel LA CROIX, Petitioner, v. Richard M. DEYO, Administrator of the Estate of Debra Campbell Deyo, Deceased, Respondent.

Family Court, Ulster County.

Nov. 4, 1981.

Andrea Moran, Boiceville, for petitioner.

Philip Korn, Kerhonkson and Charles Gaffney, P. C., Kingston, for respondent.

Jay Samoff, Kingston, Law Guardian.

HUGH R. ELWYN, Judge:

Ariel La Croix, the putative father of a child born out of wedlock on August 19, 1973, to Debra Campbell Deyo, now deceased, brings this paternity proceeding to have himself declared to be the father of the child so that he may have standing to seek the child's custody (Family Ct. Act § 511). Upon the mother's death on October 13, 1980 the child's custody devolved upon his stepfather, Richard Deyo, who is named as a respondent in his representative capacity as the Administrator of the mother's estate, but not individually.

The Court having decided that the petitioner has standing to maintain this proceeding to establish his status as the child's natural father despite the fact that in order for the child to have been conceived when the mother was under 17 years of age he necessarily committed the crime of sexual misconduct in violation of Section 130.20 of the Penal Law, a Class A Misdemeanor, (See Matter of La Croix v. Deyo, 108 Misc.2d 382, 437 N.Y.S.2d 517), the Petitioner presented his proof in support of his claim in a two part hearing. The first hearing was directed to the reception of proof in support of his assertion that he is the child's natural father ¹ and the second to proof in support of his assertion that since he is the child's natural father, the mother being deceased, he is entitled to the child's custody.

Shortly prior to the conclusion of the first hearing the Legislature amended Section 532 of the Family Court Act by C9, L. 1981, eff. March 2, 1981 to provide for the admissibility into evidence in a paternity proceeding of the results of the human leukocyte antigen blood tissue tests. Upon motion of the petitioner the court ordered such tests to be performed at the petitioner's expense.

The tests were performed upon blood samples taken from Ariel La Croix, the putative father and the child, Paul J. La Croix, by Leon N. Sussman, M.D. F.A.C.P. of the Lindsley E. Kimball Research Institute of the New York Blood Center, 310 East 67th Street, New York, N.Y. on June 11, 1981. The Court has been assured by Dr. Sussman in writing that the mother's death did not preclude the making of such tests, nor impair the validity of the conclusions to be drawn therefrom. The results of these tests which were received in evidence without objection, ² pursuant to the provisions of Family Court Act § 532 as amended by Chapter 9, L. 1981, effective March 2, 1981, ³ reads as follows:

Calculation of Plausibility of Paternity Combined Paternity Index (P.I.) = 3313

Plausibility of Paternity (W) = .9997

According to Hummels Predicates--paternity is "practically proved."

With the plausibility of paternity established by these tests at .9997, which is interpreted to mean "practically proved", I find that the petitioner's claim to be the father of this child has been proven by incontrovertible scientific evidence which is both "clear and convincing" and "wholly satisfactory". With this kind of scientific evidence before the court, it is unnecessary to decide the applicability of CPLR § 4519 to the petitioner's testimony of sexual relations with the now deceased mother, ⁴ as to which decision had been reserved, or whether the quantity and quality of the petitioner's other proof must be "entirely satisfactory" as in any other paternity proceeding (Matter of James J. v. Valerie M., 98 Misc.2d 785, 787, 414 N.Y.S.2d 657) or whether a lesser degree than that of "entirely satisfactory" might suffice and a finding of paternity, when sought by a father, made on only a preponderance of the evidence (Jaynes v. Tulla, 70 A.D.2d 680, 416 N.Y.S.2d 357). ⁵ On either standard of proof, ⁶ the scientific evidence in this case will admit of only one conclusion--the petitioner is indeed, as he claims to be, the father of this child.

Accordingly, I find the petitioner, Ariel La Croix to be the father of the child Paul J. La Croix and an order of filiation may be entered declaring him to be such.

A person alleging himself to be the father of a child may now originate a proceeding to establish the paternity of the child (F.C.A. § 522, 523; see Matter of La Croix v. Deyo, 108 Misc.2d 382, 383 and cases cited at p. 383, 437 N.Y.S.2d 517). The Family Court may make orders of custody or of visitation in any proceeding in which it makes a finding of paternity (F.C. A. §§ 511, 549). ⁷ If the Family Court may make an order of custody in a paternity proceeding (F.C.A. § 511) there appears to be no logical reason why this authority should be limited to a proceeding in which the mother is the petitioner and not extend to a proceeding initiated by a putative father. To hold otherwise would constitute a constitutionally impermissible distinction based solely on gender (Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297; Matter of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306), thereby denying a father the equal protection of the law (U.S.Const.Amend. XIV).

The Court therefore holds that this petitioner having been determined to be the child's natural father has status to seek the custody of his out of wedlock child.

For well over a century New York Courts had held that a father, even though unwed, had a right to the custody of his natural child, superior to the world, although inferior to the natural mother (People ex rel. Trainer v. Cooper, 8 How.Prac. 288 (1853). In People ex rel. Meredith v. Meredith, 272 App.Div. 79, 82, 69 N.Y.S.2d 462, affd. 297 N.Y. 692, 77 N.E.2d 8 (1947) the rule is stated that "the mother has a right to the custody of an illegitimate child as against the father, though the father has the right to the custody as against a stranger (citations omitted)". (See also, Matter of Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318). It is now firmly established that the fathers of out of wedlock children have rights which the courts must recognize (Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551). The Supreme Court of the United States there held "that it was violative of due process to deprive an illegitimate father of custody of his children without a determination of his fitness * * *. The court recognized that the interests of a father of an illegitimate child are no different from those of other parents" (People ex rel. Blake v. Charger, 76 Misc.2d 577, 580, 351 N.Y.S.2d 322). See also Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297; Dom.Rel.Law § 111, subd. (d)(e); § 111-a; Social Services Law § 384-c).

The superior rights of parents to the custody of their own children has been repeatedly affirmed by the Court of Appeals (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Corey L. v. Martin L., 45 N.Y.2d 383, 391, 408 N.Y.S.2d 439, 380 N.E.2d 266; Matter of Sanjivini K., 47 N.Y.2d 374, 382, 418 N.Y.S.2d 339, 391 N.E.2d 1316; Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 208, 440 N.Y.S.2d 884, 423 N.E.2d 361; Matter of Spence-Chapin Adoption Serv. v. Polk, 29 N.Y.2d 196, 324 N.Y.S.2d 937, 274 N.E.2d 431; People ex rel. Scarpetta v. Spence Chapin Adoption Serv., 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787; People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 113 N.E.2d 801; People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 104 N.E.2d 895), by the Appellate Division, People ex rel. "P.P." v. Sackey, 40 A.D.2d 130, 338 N.Y.S.2d 838 (3rd Dept. 1972); Tyrrell v. Tyrrell, 67 A.D.2d 247, 415 N.Y.S.2d 247, affd. 47 N.Y.2d 937, 419 N.Y.S.2d 969, 393 N.E.2d 1041 (4th Dept.) and the Family Court (Matter of Spencer, 74 Misc.2d 557, 346 N.Y.S.2d 645 (1973)). Thus courts have "not hesitated to hold that a parent cannot be displaced because someone else could do a 'better job' of raising the child" (Matter of Corey L. v. Martin L. supra, 391, 408 N.Y.S.2d 439, 380 N.E.2d 266). "The father of an illegitimate child possessed this right no less than the father of a child born in wedlock (citations omitted)" (Matter of Raysor v. Gabbey, 57 A.D.2d 437, 439-440, 395 N.Y.S.2d 290). There is "no rule of law that would require a distinction to be made in applying this standard to an unwed natural father" (People ex rel. Blake v. Charger, 76 Misc.2d 577, 580, 351 N.Y.S.2d 322).

This presumption in favor of the natural father has subsequently been modified by the decision of the Court of Appeals in Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277; to require the application of the best interest test when extraordinary circumstances are found to exist (Matter of Gomez v. Lozado, 40 N.Y.2d 839, 387 N.Y.S.2d 834, 356 N.E.2d 287; Raysor v. Gabbey, supra, 440, 395 N.Y.S.2d 290). However, "before the nonparent may succeed against a parent in obtaining custody of the parent's natural child, the nonparent must satisfy the heavy burden of proving the disqualification of the parent through abandonment, neglect, unfitness or extraordinary circumstances and also that the best interests of the child compel awarding custody to the nonparent (citations omitted). Indeed, for a court to award custody of a child to a nonparent without proof of the parent's disqualification is a denial of the parent's constitutional rights (see Stanley v. Illinois, 405 U.S. 645, 651 )." (Raysor v. Gabbey, 57 A.D.2d 437, 440, 395 N.Y.S.2d 290); see also Dennis T. v. Joseph C., 82 A.D.2d 125, 133, 441 N.Y.S.2d 476.

Thus, Ariel La Croix, the natural father of this child, although never married to the natural mother has "rights" which the court must recognize, unless an application of the best interests of the child test...