State ex rel. H. v. P.

• Decision Date: 30 December 1982
• Citation: 457 N.Y.S.2d 488,90 A.D.2d 434
• Parties: STATE of New York on the Relation of H., Petitioner-Appellant, v. P., Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 488

457 N.Y.S.2d 488

90 A.D.2d 434

STATE of New York on the Relation of H., Petitioner-Appellant, v. P., Respondent-Respondent.

Supreme Court, Appellate Division First Department.

Dec. 30, 1982.

Norman M. Sheresky, New York City, of counsel (Kathleen H. Casey, New York City, with him on the brief; Colton, Weissberg, Hartnick, Yamin & Sheresky, New York City, attorneys), for appellant.

Helene Brezinsky, New York City, of counsel (Eleanor B. Alter and Margaret Goodzeit, New York City, with her on the brief; Rosenman Colin Freund Lewis & Cohen, New York City, attorneys), for respondent.

Lawrence Kalik, New York City, guardian ad litem.

Before SULLIVAN, J.P., and ROSS, SILVERMAN, BLOOM and ALEXANDER, JJ.

SULLIVAN, Justice Presiding.

In this habeas corpus proceeding, brought by a husband to determine custody and visitation rights with respect to an infant daughter, the only issue of his marriage to the respondent wife, the wife, challenging the husband's paternity, has obtained an order directing him to submit to a blood grouping test. The husband appeals.

The parties were married on September 28, 1975. On December 22, 1979, over four years later, during all of which time they were cohabiting, their daughter, Elizabeth, was born. One year earlier, however, the husband had been found to be sterile. Anxious to have children, the wife enrolled with her husband's consent in an artificial insemination program from which, she alleges, she withdrew after participating unsuccessfully for a period of several months. She claims that Elizabeth was thereafter conceived during a dalliance with an unnamed individual on a business trip to California.

The husband was recorded as the father on the birth certificate, and has always held himself out as such. Although she claims otherwise the husband states that the wife did not inform him of her extra-marital episode and her belief that the child was not conceived either by normal intercourse with him or through artificial insemination with donor sperm, until well after the couple began to experience serious marital difficulties, soon after the child's birth. As a result of these difficulties, the husband stayed in a hotel for extended periods on several occasions between February and June 1980. He regularly visited his child, however, sometimes even daily, and frequently stayed overnight on weekends.

Even after their final separation in June of 1980 the parties continued to recognize the husband as the child's father. During the summer of 1980 he had visitation with her every weekend, and for a week in August, when he took her to visit his family in Pennsylvania. Nor, during the initial stages of their separation, did the wife ever attempt to challenge his paternity. Indeed, she continued to encourage the father-daughter relationship, and accepted child support payments.

For Christmas 1980 the wife gave the husband a book entitled "The Second Twelve Months of Life", which contained an inscription "Dear Daddy, The following pages are sure to keep you well-informed regarding my 'developmental whereabouts'. Thank you for a wonderful 'first 12 months'. Good luck in the next 12!! Love and kisses, Elizabeth." In early 1981 the wife, a college instructor in Early Childhood Education, invited the husband to bring Elizabe to one of her lectures. He was introduced to the class as Elizabeth's father. In April 1981 the wife sent the husband a birthday card from Elizabeth "to Daddy."

Beginning in March of 1981 the parties also visited a child psychiatrist, with whose assistance they worked out a visitation schedule. The schedule permitted Elizabeth to be with the husband from Saturday morning to Sunday evening nearly every weekend, on Wednesday nights overnight, on another evening for dinner, for some additional weekend overnights, and for extended periods on vacations. During all of this time the husband continued to pay child support which, according to his estimate, amounts to approximately $40,000 for the period between July 1, 1980 and December 1981. ¹

In October 1981 and, according to the husband, after the parties were unable to come to final terms on a financial settlement, the wife threatened to deny and eventually withheld visitation. At that point the husband initiated this habeas corpus proceeding. In her answer, the wife asserted that the husband had no right to custody or visitation since he was not the child's father. She alleged that the husband had known from the time of birth both that Elizabeth was not his daughter as well as how she was actually conceived. The wife insisted that she permitted him to see the child only as an accommodation, and after being harassed and harangued in tirades that continued until she beleagueredly consented, but that the husband's behavior had subsequently become so irrational as to endanger the child's welfare. She cites an instance in March 1981, when he referred to the child as "the little bastard" and his repeated threats to sleep with Elizabeth when she is older.

Since September of 1980 the wife has been living with a man whom she expects to marry but who, according to her, is not the father of the child. The wife has refused to name the natural father, but alleges that she has obtained his consent to Elizabeth's adoption by the prospective husband.

To support her claim that the husband is not the child's father, the wife sought to have him submit to both a blood grouping test to determine his blood relationship to Elizabeth, and a procedure known as a bilateral repeat testicular biopsy to ascertain whether he was capable of producing sperm cells. Special Term refused to direct the biopsy because the results would not be determinative of sterility at the time of conception, and would be superfluous in view of the availability of the husband's medical records before and after Elizabeth's birth. The court, however, did direct the husband to submit to a blood test, inasmuch as such examination "specifically is authorized by statute and is minimally intrusive." ² We believe that because such test has the potential to bastardize the child without settling the issue of paternity it offends this state's public policy, which presumes the legitimacy of children born during wedlock, and, accordingly, reverse.

The presumption of legitimacy is "one of the strongest and most persuasive known to the law." (Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 citing cases; see Matter of Schenectady County Dept. of Social Servs. v. Hilvan RR, 57 A.D.2d 688, 689, 394 N.Y.S.2d 71.) Rooted in the common law, its force was so potent that neither spouse was competent to testify to non-access during wedlock. Thus, "[i]f a husband, not physically incapable, was within the four seas of England during the period of gestation, the court would not listen to evidence casting doubt on his paternity." (Matter of Findlay, supra, 253 N.Y. at 7, 170 N.E. 471; see Cross v. Cross, 3 Paige 139.)

In Goodright v. Moss (2 Cowp. 591), the court outlined the principle which has come to be known as Lord Mansfield's Rule:

The law of England is clear that a declaration of a father or mother cannot be admitted to bastardize the issue born after marriage. It is a rule founded on decency, morality and policy that they shall not be permitted to say after marriage that they have had no connection and therefore that the offspring is spurious. (Id. at 594.)

Subject to certain statutory exceptions, New York has adopted Lord Mansfield's Rule. (See Comr. of Public Welfare v. Koehler, 284 N.Y. 260, 30 N.E.2d 587; Lovelace v. Arcieri, 17 A.D.2d 465, 235 N.Y.S.2d 501; Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344.) The present statutory exceptions to the rule against spouses testifying to non-access to each other are found in Family Court Act § 436 (support proceedings) and § 531 (filiation proceedings).

While the presumption of legitimacy is, of course, rebuttable, it "will not fail unless common sense and reason are outraged by a holding that it abides." (Matter of Findlay, supra, 253 N.Y. at 8, 170 N.E. 471; see Estate of Fay, 44 N.Y.2d 137, 404 N.Y.S.2d 554, 375 N.E.2d 735.) In Findlay the court also noted that "if husband and wife are living together in the conjugal relation, legitimacy will be presumed though the wife was harbored an adulterer [citations omitted]." (Id. 253 N.Y. at 8, 170 N.E. 471.)

In this case, not even the husband's sterility will disturb the presumption of legitimacy since the wife concededly received donor sperm by means of artificial insemination on at least ten occasions prior to conception. Noteworthy in this regard is the wife's careful avoidance in her affidavit of even approximating the date that she discontinued her participation in the program. By statute in New York (Domestic Relations Law § 73[1] ) ³ a child born to a married woman through artificial insemination performed with the consent of the woman and her husband is legitimate. Thus, the husband's claim to paternity is first, that he had sexual access to the wife during the period in which the child was conceived ⁴ and which access the wife may not deny since this is neither a support nor filiation proceeding (Family Court Act §§ 436, 531); and, secondly, the wife participated with his consent in an artificial insemination program wherein she received donor sperm.

New York courts have not hesitated to order the production of evidence in the form of blood tests to overcome the presumption of legitimacy when a child's paternity is in issue. (See, e.g., Kwartler v. Kwartler, 291 N.Y. 689, 52 N.E.2d 588; Maureen G. v. Kenneth G., 56 A.D.2d 644, 391 N.Y.S.2d 891; O'Brien v. O'Brien, 4 A.D.2d 867, 166 N.Y.S.2d 897, lv. to app. granted, 4 A.D.2d 946, 168 N.Y.S.2d 607; Anonymous v. Anonymous, supra, 1 A.D.2d 312, 150 N.Y.S.2d 344.) But in each of these cases the...