Sharon GG v. Duane HH
| Decision Date | 13 October 1983 |
| Citation | 467 N.Y.S.2d 941,95 A.D.2d 466 |
| Parties | In the Matter of SHARON GG, * Appellant, v. DUANE HH,* Appellant, and Michael GG,* Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bernstein, Gitlitz & Sukloff, Binghamton (Donald M. Sukloff, Binghamton, of counsel), for Sharon "GG", appellant.
Aswad & Ingraham, Binghamton (Richard N. Aswad, Binghamton, of counsel), for Michael "GG", respondent.
Twining, Nemia, Hill & Steflik, Binghamton (James C. Gacioch, Binghamton, of counsel), for Duane "HH", appellant.
Before SWEENEY, J.P., and KANE, CASEY, WEISS and LEVINE, JJ.
OPINION FOR AFFIRMANCE
Petitioner wife and respondent husband were married in 1976 and lived together continuously until September of 1982. The wife gave birth to a child in June, 1980. In September, 1982, the wife left the marital residence with the child. The husband was awarded visitation rights by order of the Family Court. Negotiations between the parties toward a resolution of their marital disputes during the fall of 1982 were unsuccessful, although the husband continued to make regular, substantial child support payments. In late November, 1982, the wife was held in contempt of the Family Court's earlier order of visitation. It was then that she commenced the instant paternity proceeding. In her original petition, she named only her current boyfriend as the father and joined the husband only as an interested party. In an amended petition, however, she also named the husband as "an alleged father". The purpose of this amendment admittedly was to take advantage of section 532 of the Family Court Act to compel her husband to submit to an HLA blood test whereby his parentage could scientifically be excluded (a prior HLA test of her boyfriend had established a high probability of his paternity). The husband objected to the test and moved to dismiss the petition. Family Court refused to order the test and dismissed the petition, alluding to principles of equitable estoppel and public policy and to the welfare of the child as militating against any proceeding which would result in a determination that the child was illegitimate, under the circumstances of the case. Both the wife and her boyfriend have appealed.
Initially, we reject the husband's contention that, because the wife's objective in bringing this proceeding was to determine the status of the child as being the son of her boyfriend and not his, her action should properly have been brought as a declaratory judgment in Supreme Court rather than as a paternity proceeding in Family Court. It is true that paternity jurisdiction was originally created solely as a vehicle to identify persons liable for the support of children born out of wedlock and not to decide parental status (Commissioner of Public Welfare of City of N.Y. v. Koehler, 284 N.Y. 260, 266, 30 N.E.2d 587). However, more recent developments, notably the enactment giving putative fathers the right to initiate paternity proceedings (Family Ct. Act, § 522, as amd. by L.1976, ch. 665, § 6) and numerous other laws conferring rights and benefits flowing from an order of filiation, have largely eroded the general proposition that a paternity proceeding may not be brought to determine status (see Matter of Leromain v. Venduro, 95 A.D.2d 80, 466 N.Y.S.2d 729; Matter of Kordek v. Wood, 90 A.D.2d 209, 457 N.Y.S.2d 156). Consequently, that the petition was not brought to fix liability for support did not deprive Family Court of jurisdiction to entertain it.
Turning, then, to the merits, we agree with Family Court's dismissal of the petition. Uncontested sworn allegations by the husband establish that he and the wife had sexual relations continuously and frequently throughout the period they lived together, including the critical period for conception; that never before December of 1982, some two and one-half years after the child's birth and only after the wife was thwarted in her attempt to deny him visitation, did she express any question concerning paternity; that throughout the period of the marriage, she held...
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