Richard W v. Roberta Y

• Decision Date: 13 July 1995
• Citation: 629 N.Y.S.2d 512,212 A.D.2d 89
• Parties: In the Matter of RICHARD "W", 1 Respondent, v. ROBERTA "Y", 1 Appellant.
• Court: New York Supreme Court — Appellate Division

Page 512

629 N.Y.S.2d 512

212 A.D.2d 89

In the Matter of RICHARD "W", ¹ Respondent, v. ROBERTA "Y", ¹ Appellant.

Supreme Court, Appellate Division Third Department.

July 13, 1995.

Arroyo, Copland, Rosenbaum & Flaherty (Shawn D. Flaherty, of counsel), Albany, for appellant.

Richard "W", Esperance, in pro. per.

Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.

YESAWICH, Justice.

Appeal from an order of the Family Court of Albany County (Tobin, J.), entered April 15, 1994, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 5, to adjudicate petitioner as the father of a child born to respondent.

Petitioner maintains that he is the father of a daughter born to respondent on April 29, 1993. Respondent, who married her present husband, William "Y", in November 1992, admits to having had unprotected sexual intercourse with both petitioner and William on different occasions near the probable date of conception. Family Court, following a hearing, found respondent's admission that she had engaged in sexual relations with petitioner at the relevant time, coupled with results of a human leucocyte antigen (hereinafter HLA) test showing a 99.53% probability that petitioner is the child's father, ² sufficient to overcome the presumption of legitimacy that arises when a child is born to a married woman (see, Matter of Lane v. Eno, 277 App.Div. 324, 325, 98 N.Y.S.2d 789), and entered an order of filiation declaring petitioner to be the child's father. Respondent appeals.

Although neither party has raised the issue, petitioner's claim, which was promptly pressed, cannot fairly be resolved without first having William joined as a party respondent. Historically, neither the child whose paternity was at issue nor the mother's husband has been deemed a necessary party to a paternity proceeding (see, Commissioner of Pub. Welfare of City of N.Y. v. Koehler, 284 N.Y. 260, 267, 30 N.E.2d 587). However, this principle was premised upon the fact that, when it was embraced a paternity proceeding had no effect on the child's legal status, but was intended only as a means of securing support (see, id., at 266-267, 30 N.E.2d 587). In the interim, however, the Legislature amended Family Court Act § 522 to include "a person alleging to be the father" as a proper petitioner to commence a paternity proceeding (L.1976, ch. 665, § 6, eff. Jan. 1, 1977). As a result of this amendment "and numerous other laws conferring rights and benefits flowing from an order of filiation" (Matter of Sharon GG. v. Duane HH., 95 A.D.2d 466, 467-468, 467 N.Y.S.2d 941, affd 63 N.Y.2d 859, 482 N.Y.S.2d 270, 472 N.E.2d 46), the consequences of a proceeding of this type--both for the child and for the involved adults--are now considerably greater than they have been in the past (see, Matter of Cathleen P. v. Gary P., 63 N.Y.2d 805, 807, 481 N.Y.S.2d 332, 471 N.E.2d 145; Matter of Kordek v. Wood, 90 A.D.2d 209, 213, 457 N.Y.S.2d 156). This, along with the development of accurate scientific methods for demonstrating the nonpaternity of a large majority of males who are not actually the father (see, Matter of Department of Social Servs. [Sandra C.] v. Thomas J.S., 100 A.D.2d 119, 122-123, 474 N.Y.S.2d 322; 1 Schatkin, Disputed Paternity Proceedings § 8.08 [4th rev. ed.], has made it more realistic to view a paternity proceeding as a means of actually and conclusively determining the identity of a child's biological father (see, Matter of Commissioner of Social Servs. [Celia D.] v. Hector S., 216 A.D.2d 81, 628 N.Y.S.2d 270; Matter of Gorton v. Gorton, 123 Misc.2d 1034, 1036, 475 N.Y.S.2d 767).

Accordingly, where, as here, a mother's husband has been a substantial presence in the child's life and desires to continue to exercise parental rights, the need for joining him, as a party whose interests "might be inequitably affected by" the resulting order of filiation (CPLR 1001[a], is manifest and may be ordered by the court on its own motion (cf., Matter of Tyrone G. v. Fifi N., 189 A.D.2d 8, 15-16, 594 N.Y.S.2d 224; Albert C. v. Joan C., 110 A.D.2d 803, 804, 488 N.Y.S.2d 188).

Moreover, with the joinder of William as an "alleged father", the court can order him to submit to a blood test (see, Family Ct. Act § 532[a]; CPLR 3121[a], the results of which, if they exclude him as the child's father, will provide the clear and convincing evidence petitioner needs to rebut the presumption of legitimacy (see, e.g., Ghaznavi v. Gordon, 163 A.D.2d 194, 195, 558 N.Y.S.2d 46). And if William refuses to submit to the test, an adverse inference may then be drawn against him (see, Fitzgerald v. Tamola, 199 A.D.2d 122, 123, 605 N.Y.S.2d 67; Matter of Joseph P.M. v. Boyce R., 127 Misc.2d 931, 933-934, 487 N.Y.S.2d 685). This is not to suggest that the presumption of legitimacy should not continue to govern when the truth cannot be known with reasonable certainty (as, for example, if the blood test results do not rule out William as the child's fath...