Lock v. Fisher

• Decision Date: 11 June 1980
• Parties: In the Matter of Louis W. LOCK, Petitioner, v. Jane FISHER, Respondent.
• Court: New York Family Court

Page 868

428 N.Y.S.2d 868

104 Misc.2d 656

In the Matter of Louis W. LOCK, Petitioner, v. Jane FISHER, Respondent.

Family Court, Westchester County.

June 11, 1980.

Richard A. Gould, Gould & Weissman, White Plains, for petitioner.

Peter D. Mosher, Mosher & Klein, Larchmont, for respondent.

DECISION AND ORDER

LUCILLE POLK BUELL, Judge:

Petitioner, by petition dated October 16, 1978, alleges that he is the father of Mary Lock, born out-of-wedlock to respondent on August 4, 1972 and seeks an order of filiation. Petitioner is named as the child's father on a corrected birth certificate and the child bears his surname. Respondent entered a denial to the petition, but did not testify at the hearing.

Petitioner testified that in 1970 or 1971, he met respondent at the hospital where he was employed part-time as a male nurse and where respondent was employed as an aide. Both parties were unmarried. They began dating two or three times a week and commenced having sexual relations in November or December, 1971. Petitioner further testified that, to the best of his knowledge, from approximately October, 1971, to February, 1972, respondent was not dating or having sexual intercourse with any other person. Their sexual relationship continued until August, 1972.

Petitioner testified that he saw respondent approximately one month prior to the birth of the child. Thereafter respondent concealed her whereabouts and he did not see respondent or the child for the next four or five months. He did not know respondent's whereabouts when the child was born, the name of the hospital where the child was born or the name of the doctor who delivered the child. Respondent eventually contacted him and told him that the child had been born and that he was the father.

Petitioner testified that the parties met sometime later and that he had limited visitation with the child, paid some support to respondent for the child and occasionally purchased Christmas and birthday presents for the child. He gave respondent $300.00 to $400.00 in cash when she first became pregnant and he produced three checks dated December 18, 1978, January 18, 1979, and February 18, 1979, made out to respondent with a notation "For Mary ______" on each check. The checks were endorsed by respondent. The Court notes that all checks are dated subsequent to the date of the filing of the instant petition.

Petitioner testified that he took the child to an orthopedic surgeon for an examination on October 21, 1974. He produced a report dated October 21, 1974, by one George Froehlich, M.D., indicating an examination of "Lock, Mary, Fa: Mr. Louis ______" and a bill from Dr. Froehlich for the examination sent to "Mr. Louis Lock re: Mary ______" and marked "Paid 1-20-75".

Petitioner produced a corrected birth certificate for "Mary Lock ______" approved for filing January 30, 1975, containing the name "Louis W. Lock" as the father. Petitioner testified that the parties had agreed to have a corrected birth certificate issued to change the child's surname to "Lock".

Upon cross-examination, petitioner testified that the parties generally dated after their work shift at the hospital and that they occasionally saw each other on weekends. Petitioner admitted that he did not know how respondent spent her time on the two or three days a week when he did not see her.

Petitioner testified on cross-examination that he had never sent respondent child support on a regular basis but had given her cash at various times when he had it and that he had occasionally purchased clothes and gifts for the child. He said that the $300.00 to $400.00 cash which he gave respondent early in her pregnancy was for an abortion. He did not contribute towards respondent's hospital or medical bills or any other bills during the first few months of the child's life because he did not know where to find respondent.

Following his testimony, petitioner called respondent as a witness. The Court stated no negative inference would be drawn from respondent's refusal to testify on petitioner's direct case. Respondent refused to testify.

Respondent did not testify on her own behalf.

The child's godmother, a friend of respondent's since 1969, testified on respondent's behalf. The witness testified she had worked at the same hospital as the parties and at one time lived in the same hospital quarters as respondent. She moved to a private residence sometime after respondent's child was born. For a period of approximately five years she cared for respondent's child at her home from 7:00 a. m. until 4:00 p. m. while respondent worked at the hospital.

She further testified that prior to the child's birth she had never seen petitioner visit respondent at respondent's residence and that petitioner had never visited the child while the child was in the witness' care.

She testified upon cross-examination that she first saw petitioner at the hospital in 1969 or 1970 but had never met him socially. She knew petitioner worked the evening shift and was unable to state whether or not petitioner had been working during the hours that the child was in her care.

Article Five of the Family Court Act was amended, effective January 1, 1977, to permit "a person alleging to be the father, whether a minor or not . . . " to originate a paternity proceeding. New York Family Court Act Section 522 (L.1976, c. 655, Sec. 6). In related sections of Article Five the possibility of a male petitioner was provided for simply by substituting the words "alleged father" or "male party" for "respondent". New York Family Court Act Sections 531, 532, 541 and 542.

When the petitioner is the alleged father, issues arise as to the propriety of applying the same burden of proof as that applied when the petitioner is the mother and as to whether a negative inference arises when a respondent mother elects not to testify.

When the petitioner is the child's mother, proof of paternity must be established by clear and convincing evidence entirely satisfactory to the Court. Lopez v. Sanchez, 34 N.Y.2d 662, 355 N.Y.S.2d 581, 311 N.E.2d 652 (1974); Matter of Renee K. v. Robert P., 50 A.D.2d 604, 375 N.Y.S.2d 392 (2nd Dept., 1974); Patricia B. v. Rossario R., 46 A.D.2d 922, 362 N.Y.S.2d 548 (2nd Dept., 1974). This standard of proof has been applied because the charge of paternity is easily made, often difficult for the male respondent to disprove, and may result in a substantial financial burden being placed upon the respondent.

Due to the inescapable fact that there is critical information concerning the child's conception and birth which is exclusively within the knowledge of the mother, it has been stated that a male petitioner's burden of proof should be reduced to a preponderance of the evidence. Smith v. Lane, 101 Misc.2d 615, 421 N.Y.S.2d 786 (Fam.Ct., Bronx Co., 1979).

In Jaynes v. Tulla, 70 A.D.2d 680, 416 N.Y.S.2d 357 (3rd Dept., 1979), the court held that because of the difference in the financial consequences of a paternity proceeding brought by the alleged father, he should only be required to establish his paternity by a preponderance of the evidence.

The legal status of putative fathers is in a period of rapid transition. Distinctions between the rights and status of unmarried mothers and fathers are steadily diminishing. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). To survive scrutiny under the Equal Protection Clause, any gender-based distinction in treatment between unmarried mothers and fathers must bear a "substantial relation to some important state interest". Caban, supra, 99 S.Ct. at 1766.

Historically, the state interest in any paternity proceeding was the indemnification of the state for the expense of supporting the child. See John J. S. v. Theresa L., 99 Misc.2d 578, 416 N.Y.S.2d 1000 (Fam.Ct., Bronx Co., 1979); Roe v. Roe, 65 Misc.2d 335, 316 N.Y.S.2d 94 (Fam.Ct., Kings Co., 1970) and cases cited therein.

The state also has an interest in the orderly devolution of property. An order of filiation protects both the inheritance rights of the out-of-wedlock child and his issue and the rights of those persons inheriting from a child born out-of-wedlock. New York Estates, Powers and Trusts Law Section 4-12.

In light of this steady decline in permissible gender-based distinctions in proceedings involving out-of-wedlock children, the parties must be treated equally whenever possible.

Further, it must be remembered that while an order of filiation may affect the economic and other pragmatic aspects of the relationship between the adult parties, the primary purpose of filiation proceedings is the "protection of the welfare of out-of-wedlock children". Matter of J Children, 50 A.D.2d 890, 891, 377 N.Y.S.2d 530, 531 (2nd Dept., 1975). All parties' interests must be considered but the Court's primary concern is the welfare of the child. Matter of Julie J. v. Edwin A., 86 Misc.2d 882, 383 N.Y.S.2d 994 (Fam.Ct., N.Y.Co., 1976). To protect the child, paternity should be established with the greatest care.

The fact that the alleged father may willingly assume a financial burden is not in this Court's opinion, sufficient reason to risk burdening a child with one who is not in fact his natural father.

The Court recognizes the substantial differences that exist between a proceeding brought by the alleged father and one brought by the mother and that certain essential facts such as proof of non-access and the date of conception are peculiarly within the personal knowledge of the female party. As to those facts, the general rule in civil cases that a party has the burden of proof with regard to any facts peculiarly within the party's...