People ex rel. Blake v. Charger

• Decision Date: 04 January 1974
• Citation: 76 Misc.2d 577,351 N.Y.S.2d 322
• Parties: PEOPLE of the State of New York ex rel. Lillian BLAKE * and Selma Porter*, Petitioners, v. Harold CHARGER *, Respondent, for a Writ of Habeas Corpus of the Said Rochelle Porter *, an infant under the age of 14 years, now held by the Respondent herein.
• Court: New York Family Court

Page 322

351 N.Y.S.2d 322

76 Misc.2d 577

PEOPLE of the State of New York ex rel. Lillian BLAKE^* and Selma Porter* Petitioners, v. Harold CHARGER * Respondent, for a Writ of Habeas Corpus of the Said Rochelle Porter *, an infant under the age of 14 years, now held by the Respondent herein.

Family Court, City of New York, Queens County.

Jan. 4, 1974.

Arnold W. Arnold, New York City, for petitioners.

Robert N. Schwartz, New York City, for respondent.

DECISION and ORDER

M. MICHAEL POTOKER, Judge:

This case poses the petitioners, the maternal great aunt and grandmother respectively, against the respondent putative father, in a dispute concerning the custody of a child known as Rochelle Porter, born out of wedlock on August 12, 1965. The natural mother of the child died on February 17, 1967.

The petitioners contend that the respondent is not related to the child, nor is he a proper person to have custody. They, on the other hand claim to be related by blood and interest to the child, are ready, willing and able to assume the responsibility of supporting, maintaining and rearing her, and consequently, it is in the best interest of the child that they be awarded her custody.

The respondent in furtherance of his claim, seeks to introduce evidence that he is the father of the child even though his paternity was never legally established. The court is therefore asked to determine the question, seemingly novel in this jurisdiction, as to the admissibility under C.P.L.R. Section 4519 (dead-man's statute) of respondent's testimony concerning acts of sexual intercourse and cohabitation with the deceased mother.

The disability imposed by the statute is plain. That the acts of intercourse and cohabitation are transactions within the meaning of the statute is also plain. See In Re Kelly's Estate, 238 N.Y. 71, 143 N.E. 795 (1924), and In Re Christie's Estate, 167 Misc. 484, 4 N.Y.S.2d 484 (1938). however, these cases involved matters of pecuniary interest.

This court holds that testimony as to acts of intercourse and cohabitation between respondent and decedent are admissible, and that such testimony does not come within the prohibition of C.P.L.R. Section 4519. It is the opinion of this court that the 'dead-man's statute' as it is popularly known, is, and has been, designed to protect a decedent's estate from the prejudice of uncontroverted or perjured testimony where there is a pecuniary or property interest involved. There is no such pecuniary or property interest in this case. The issue to be determined is one of status; i.e. the blood relationship between respondent and child rather than the right to property. The object of the litigation in the case at bar is not property or money or tangible economic benefit, but the custody of a defenseless child, whose best interests must be held paramount. (See Mottla, New York Evidence, Sections 378--382, where the commentator's approach to the 'dead-man' statute is entirely in pecuniary terms.)

This court finds support for its view in Colon v. Tristani, 45 Puerto Rican Reports 219. In interpreting the effect of an analogous 'dead-man's' statute in an action to establish paternity against a deceased putative father, the court held the following:

'We are not dealing with a claim against the property constituting the estate of (the deceased putative father). An action of filiation is involved, in which no evidence with regard to the property may be adduced, inasmuch as the same would be entirely irrelevant. Once the filiation is established, the person adjudged to be a natural child shall have all the rights granted to him by law; but this in no manner changes the nature of the action nor requires any other evidence than that tending to prove the status as a natural child, which is the essential purpose sought.

'We admit that the act cited by the defendant is in force, as one of the exceptions to the grneral rule, and hold that this exception should be applied within the limitations imposed by the same act, without extending it to cases which are not directly related to transactions or dealings of a decedent concerning his property.' (Id. 221).

Having determined to admit respondent's testimony as to his transactions with the deceased mother respondent testified to acts of intercourse and co-habitation which would tend to prove that he is the child's father. He related that he met decedent two years before the child's birth, shared an apartment with her for four years until her death, was sexually intimate with her and that the child was conceived during that period. He added that the child herself had always lived with him, that she was continually covered by his employer health and welfare plan and that he always provided for her support, maintenance and welfare. It was he who enrolled her in school, attended parent-teacher meetings and signed her report cards.

Respondent's testimony was corroborated in many respects by his mother and cousin.

Petitioners contend that they maintained custody of the child since her mother's death except that the child physically resided with respondent's mother during the school week for which they paid $30. per week because they were employed.

In support of their claim that respondent is not the putative father petitioners offered in evidence the child's certificate of birth (petitioners' exhibit 1) and called the court's attention to the fact that the space reserved for the child's father is blank. The exhibit was received for the sole purpose of proof of birth and not for other added or deleted items. It is the rule in New York that a birth or death certificate is admissible as a public document only to show the fact of birth or death, and not as evidence of the additional facts recited therein pursuant to law. Richardson-Prince on Evidence, 8th ed., Section 366.

From the evidence adduced the court concludes that the weight of the evidence is sufficient to establish that respondent is the natural father of the child, has held himself out to be so since the child's birth, and has been accepted as such by his family and associates, the family of the natural mother and other members of the community.

With the respondent's paternity established, the court must give due weight to the present law in this state which holds that it is in a child's best interest to be with its natural parent unless such parent is unfit, or has abandoned or surrendered the child, or other 'compelling reasons' require otherwise. Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196, 324 N.Y.S.2d 937, 274 N.E.2d 431; Scarpetta v. Spence-Chapin Adoption Service,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; People ex rel. Claudia 'PP' v. Sackey, 40 A.D.2d 130, 338 N.Y.S.2d 838 (3rd Dept., 1972); Matter of Spencer, 74 Misc.2d 557, 346 N.Y.S.2d 645 (Family Court, N.Y. County 1973).

The court is aware of no rule of law that would require a distinction to be made in applying this standard to an unwed natural father. The cases, in fact, indicate quite the opposite. It has been held that a father, even though unwed, has a right to the custody of his natural child superior to the world, although inferior to the natural mother....