June B. v. Edward L.

• Decision Date: 10 July 1979
• Citation: 419 N.Y.S.2d 514,69 A.D.2d 612
• Parties: In the Matter of JUNE B., Petitioner-Appellant, v. EDWARD L., Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 514

419 N.Y.S.2d 514

69 A.D.2d 612

In the Matter of JUNE B., Petitioner-Appellant, v. EDWARD L., Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

July 10, 1979.

Sidney Marks, New York City, for petitioner-appellant.

James J. Cally, New York City, of counsel (Cally & Cally, New York City, attys.), for respondent-respondent.

Before MURPHY, P. J., and KUPFERMAN, FEIN, LUPIANO and SILVERMAN, JJ.

KUPFERMAN, Justice.

The petitioner-appellant in 1977 moved in the Family Court for an order of filiation, declaring the respondent Edward L. to be the natural father of her son who bore his name, Edward L., Jr. On the consent of the parties, an order of filiation was entered into, with provision for support for the son until he reaches the age of twenty-one years. Obviously, the petitioner from the very beginning believed the respondent to be the father of her child, and he readily accepted the responsibility. Clearly, he is entitled to all the rights of a natural father. Caban v. Mohammed, --- U.S. ----, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). See Adoptions Making the Unwed Father Equal, by Robert H. Silk, N.Y.L.J., May 7, 1979, p. 1, col. 2.

Some ten months after the entry of the order of filiation, the petitioner- mother moved for an order vacating and setting it aside and granting a new hearing upon alleged newly discovered evidence. Together with the petition, which has an affidavit by counsel only and none by petitioner herself, ^* there was a letter from a physician stating that it was her understanding that Mr. L.'s blood type is O Positive, and that the mother and the child have blood type AB Negative, in which case parentage for Mr. L. is excluded. See Schatkin, Disputed Paternity Proceedings, rev. 4th ed. Vol. 1, Sections 5.05 and 5.10.

The dissent would remand for a hearing on that question, but to what avail? The motive for the petitioner-mother's subsequent change of heart is undoubtedly, as set forth in the dissent, her difficulties with the respondent and his having initiated a proceeding under Family Court Act Section 651, seeking custody of the child. See Braiman v. Braiman, 44 N.Y.2d 584, 589, 407 N.Y.S.2d 449, 450, 378 N.E.2d 1019, 1020; see also "The Woman Pays", The Bronx Bar Advocate, Vol. 25 No. 5 (Nov.-Dec. 1978), p. 115; Cf. Orr v. Orr, --- U.S. ----, 99 S.Ct. 1102, 59 L.Ed.2d 306.

At common law, there was a presumption of legitimacy In marriage, even though the wife was adulterous, given the cohabitation of the parties in conjugal relation at the time of conception. Fisch on New York Evidence, Section 1129 (2nd Edition); Richardson on Evidence, Section 59 (10th Edition). The common law rule has been abolished in New York State (Family Court Act Section 531), allowing a husband to attempt to establish his non-paternity. One way to help establish exclusion of a possible father is the blood grouping test. Usually, the purpose of the test is to aid the putative father in establishing his blamelessness. In fact, Sections 418 and 532 of the Family Court Act provide for a blood test "on motion of the respondent".

Shakespeare confirmed that " . . . it is a wise Father that knows his own child" ("The Merchant of Venice, Act 2, Scene 2). Unlike the mother, this respondent submits his own affidavit to the effect that the parties were living together at the time of conception, and in this case the father has assumed his responsibility, and the mother, when it suited her purpose, chose to foist responsibility upon him. The child benefits by the support provided, and it is the interest of the child with which we are most concerned. Matter of Orlando F., 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711.

With respect to the best interest of the child, it has been recently stated by Cooke, J. (now Chief Judge) that there is a "heavy burden of constitutional magnitude on one who would terminate the rights of a natural parent . . . " Matter of Corey L. v. Martin L., 45 N.Y.2d 383, 386, 408 N.Y.S.2d 439, 440, 380 N.E.2d 266, 267. Surely, such postulate is reinforced where, as here, there is a determination concurred in by both parties to the proceedings and by the court, resulting in a judgment. If there is additional evidence, and we do not have anything more than speculation, it is not newly discovered but rather recently sought.

The petitioner-mother having sought the jurisdiction of the Family Court to establish paternity and having obtained the benefit of the judgment so secured, should now be estopped from seeking to have the court annul the judgment. Matter of Montelone v. Antia, 60 A.D.2d 603, 400 N.Y.S.2d 129 (2nd Dept., 1977); Cf. Psaroudis v. Psaroudis, 27 N.Y.2d 527, 312 N.Y.S.2d 998, 261 N.E.2d 108. The more so, when she offers no alternative possibility but merely suggests the respondent's possible exclusion to the detriment of the child's parentage. The child should not be kept in limbo. Matter of Sanjivini K., 40 N.Y.2d 1025, 1026-27, 391 N.Y.S.2d 535, 536-537, 359 N.E.2d 1330, 1331-1332.

The order of the Family Court, New York County, entered on or about December 20, 1978, should be affirmed without costs.

Order, Family Court, New York County, entered on or about December 20, 1978, affirmed, without costs and without disbursements.

All concur except LUPIANO, J., who dissents in an opinion.

LUPIANO, Justice (dissenting):

June B., the mother of a male child born out of wedlock on February 28, 1974, initiated a paternity proceeding in the Family Court, New York County, by petition sworn to August 5, 1977, against respondent Edward L., alleging that he was the father of said child and seeking a declaration of paternity and an order of support. She also sought concomitantly with such relief an order of protection, alleging harassment on respondent's part "in that on 8/3/77, 9:20 PM at Petitioner's apartment, Resp. did break the door and did state to Petitioner 'I'm coming to get you'. Petitioner took that to mean a physical assault upon her person and left the apartment via window, in fear." Thus, some three and one-half years after the birth of the child, the paternity proceeding was initiated by the mother alleging sexual relations with respondent during a period commencing February, 1973 and terminating April, 1977. It thus appears that it was soon after the termination of sexual relations between the parties that the paternity proceeding was undertaken, coupled, as already noted, with a claimed need for a protective order.

At this point, it is well to recall the purpose of proceedings initiated in the Family Court to establish the paternity of a child (Family Court Act §§ 511, Et seq.).

"The purpose of paternity proceedings is to secure support for children born out of wedlock and to indemnify the community against the possibility that they might become public charges, and it is said that they are in derogation of the common law . . .. (I)t is said that statutes governing filiation proceedings should be liberally construed so as to protect the welfare of the child" (15 N.Y.Jur., Domestic Relations § 452). "The evolving theory underlying Article 5 of the Family Court Act recognizes the protection of the welfare of out-of-wedlock children as the primary purpose of filiation proceedings (Schaschlo v. Taishoff, 2 N.Y.2d 408, 161 N.Y.S.2d 48, 141 N.E.2d 562; Committee Comments, McKinney's Cons.Laws of N.Y., Book 29 A, Part I; Family Ct. Act, § 511)" (In Matter of J. (anonymous) Children, 50 A.D.2d 890, 891, 377 N.Y.S.2d 530, 531 (2nd Dept., 1975)) ¹ The statute defines a "child born out of wedlock" as "a child who is begotten and born out of lawful matrimony" (Family Court Act § 512(a)).

"Under definitions in earlier statutes concerning paternity proceedings, it was held that a child born out of wedlock or a natural child as defined by such statutes was in effect a child born out of lawful matrimony, or born to a married woman under conditions where the presumption of legitimacy was not conclusive and had been rebutted" (15 N.Y.Jur., Supra § 453).

However, in New York, legitimization may be conferred on children who were not so born by virtue of a statutory provision which declares that

"(a) child (t)heretofore or (t)hereafter born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid, in the manner authorized by the law of the place where such marriage takes place, is the legitimate child of both natural parents notwithstanding that such marriage is void or voidable or . . . shall (t)hereafter be annulled or justicially declared void" (Domestic Relations Law § 24(1)).

Other states, as for example, Louisiana, provide for other methods of legitimation, such as by acknowledgment of the child's legitimacy (despite birth out of wedlock) by the putative father (See, Matter of Slater, 195 Misc. 713, 90 N.Y.S.2d 546).

An order of filiation and support which adjudges that some person other than the mother's husband is the father of the child (born out of wedlock) and which orders him to provide support for the child is not a binding adjudication of illegitimacy and does not establish the status of the child (See, 15 N.Y.Jur., Supra § 461). In Commissioner of Public Welfare v. Koehler, 284 N.Y. 260, 266-267, 30 N.E.2d 587, 590 (1940), the Court of Appeals declared:

"Paternity proceedings are brought To enforce a statutory duty imposed upon the father of a natural child to whom the father at common law owed no duty. (citation.) Such a proceeding may be brought by the mother or if the child 'is or is likely to become a public charge' by a public official. (citation.) The child is not a necessary party to the proceedings nor is the husband of the mother. The order made in such a proceeding does not constitute an adjudication binding on them or persons claiming through or under them that the child is or is...