E R v. D T

• Decision Date: 24 January 1974
• Citation: 353 N.Y.S.2d 612,77 Misc.2d 242
• Court: New York Family Court
• Parties: E R, Petitioner, v. D T, Respondent.

Page 612

353 N.Y.S.2d 612

77 Misc.2d 242

E R, Petitioner, v. D T, Respondent.

Family Court, Genesee County.

Jan. 24, 1974.

Daniel M. Babcock, Batavia, Law Guardian, for petitioner.

William J. Copoulos, Batavia, for respondent.

Laurence W. Boylan, Le Roy, Law Guardian, for infant child.

MEMORANDUM OF DECISION

CHARLES F. GRANEY, Judge.

The respondent has entered an admission to the petition of paternity herein which alleges that he is the father of the petitioner's daughter, born on August 3, 1973. At the time of conception the petitioner was thirteen years old and the respondent was sixty-one. The petitioner has never been married or previously pregnant. The respondent has had one marriage which was terminated by divorce in March 1973 after he and his wife separated in July, 1972. He is the father of two adult daughters and has eight grandchildren. As a result of his sexual activities with the petitioner, the respondent plead guilty to Rape, Third Degree, a Class E felony. He was sentenced to probation for five years with the special condition that he stay away from the petitioner. The issue before the Court concerns the respondent father's request for visitation rights.

The Court has received a probation department report and mental health clinic evaluation of the respondent. The conclusions of these agencies conform to the Court's own impression of the respondent after observing him at a number of court appearances and listening to his testimony. The reports indicate that until this incident the respondent had been a normal, law-abiding, productive citizen and parent. There is nothing in his background to indicate that he was likely to be involved in any type of criminal or illicit sexual activity. Respondent's reaction to his association with the petitioner is of particular interest. Despite some verbalizing to the contrary, it is clear that the respondent feels no guilt or remorse over his actions. It appears to the Court that he sincerely believes he loves the petitioner. His intentions have always been and continue to be honorable. He continues to offer to marry the petitioner and provide for the child. He offers this not out of a sense of obligation, but out of a sincere affection for the petitioner and her child. He is obviously proud of his reestablished parenthood and is anxious to exercise all the rights and duties of a father. Thus, he asks to be granted rights of visitation which are being withheld by the petitioner's parents.

The situation is summed up by the examining psychiatrist as follows:

'He stated that he is very much in love with this thirteen year old girl . . . that he felt what he did was wrong but justified it on the basis that they love each other . . . He appears in this one isolated area to have relatively poor judgment and lack of insight . . . in view of the fact that this apparently is not his pattern of behavior and in view of the fact that he appears to be treating this child emotionally as an adult woman, it would appear that the most reasonable diagnosis would be Without Mental Disorder.'

The petitioner, now fourteen, lives with her parents and attends school. The child resides with her in the household. It is apparent that she shared a mutual affection with the respondent and was willing to marry him both before and after she became pregnant. At first she wanted the respondent to have visitation, now she is unsure of visitation and her desire to marry the respondent. It is clear that she does not feel wronged by the respondent and probably continues to hold some affection for him. It is equally clear that she is very confused as to her own feelings due to the experience of motherhood, her parents' understandable bitterness towards the respondent (a long time family friend), and the various court proceedings.

The shocking aspect about this case is not the nearly fifth years age difference between the parties, but the tender age of the petitioner. The poignant aspect is that both parties apparently did (and may still) enjoy a mutually affectionate relationship and a desire to marry and act as parents to their child.

Since the United States Supreme Court decision in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 551 (1972) the rights of an unwed father have come under renewed scrutiny by the courts (e.g., Doe v. Department of Social Services, 71 Misc.2d 666, 337 N.Y.S.2d 102). The courts of this state recognize the right of a father to visit his out-of-wedlock child in a proper case (Z. v. A., 36 A.D.2d 995, 320 N.Y.S.2d 997 (3rd Dept., 1971) (remitted to Family Ct.); Anonymous v. Anonymous, 34 A.D.2d 942, 312 N.Y.S.2d 348 (1st Dept., 1970) (remanded for additional evidence); Francois v. Ivanova, 14 A.D.2d 317, 221 N.Y.S.2d 75 (1st Dept., 1961) (granted); In re Anonymous, 12 Misc.2d 211, 172 N.Y.S.2d 186 (Sup.Ct., 1958) (granted); Anonymous v. Anonymous, 56 Misc.2d 711, 289 N.Y.S.2d 792 (Fam.Ct., 1968) (granted); Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318 (Fam.Ct., 1967) (granted if mother consents)). This rule was codified by the legislature in 1971 (Family Court Act, Sec. 549). No recent New York case has been found denying that such a right exists, nor, in fact, denying visitation privileges to the father. It should be noted, however, that in all of the cases cited above, except the Family Court case of Anonymous v. Anonymous, a parent-child relationship had already been established by the father residing with the mother and child or by the actual exercise of visitation over a period of time. It is clear from these cases that the best interests of the child is the ultimate standard to be...