State ex rel. H. v. P.

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore SULLIVAN; SULLIVAN; All concur except SILVERMAN; SILVERMAN
Citation457 N.Y.S.2d 488,90 A.D.2d 434
PartiesSTATE of New York on the Relation of H., Petitioner-Appellant, v. P., Respondent-Respondent.
Decision Date30 December 1982

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.

Page 489

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'.

Page 490

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...

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34 practice notes
  • Wendy G-M. v. Erin G-M.
    • United States
    • United States State Supreme Court (New York)
    • May 7, 2014
    ...that she is the legitimate child of both parents.12Id. at 734–35, 853 N.Y.S.2d 501,citingDRL § 73; State of New York ex rel. H. v. P., 90 A.D.2d 434, 457 N.Y.S.2d 488 (1st Dept.1982); Laura G. v. Peter G., 15 Misc.3d 164, 830 N.Y.S.2d 496, (Sup.Ct., Delaware Cty.2007). Similarly, in Matter ......
  • Department of Social Services on Behalf of Sandra C. v. Thomas J.S.
    • United States
    • New York Supreme Court — Appellate Division
    • March 19, 1984
    ...1, 7, 170 N.E. 471; see, also, Matter of Fay, 44 N.Y.2d 137, 142, 404 N.Y.S.2d 554, 375 N.E.2d 735; State of New York ex rel. H. v. P., 90 A.D.2d 434, 437, 457 N.Y.S.2d 488; Matter of Backus v. Backus, 72 A.D.2d 893, 422 N.Y.S.2d 161; Matter of Gray v. Rose, 32 A.D.2d 994, 302 N.Y.S.2d 185;......
  • Miller-Jenkins v. Miller-Jenkins, No. 04-443.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 4, 2006
    ...928 (1983) (husband who orally consented to artificial insemination of wife estopped from denying fatherhood); State ex rel. H. v. P., 90 A.D.2d 434, 457 N.Y.S.2d 488, 492 (1982) (wife estopped from denying husband's paternity where she fostered parent-child relationship); Brooks v. Fair, 4......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...to inquire into the cause of restraint or detention and to enforce a right to be released from such confinement (People ex rel. H v. P, 90 A.D.2d 434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.......
  • Request a trial to view additional results
34 cases
  • Wendy G-M. v. Erin G-M.
    • United States
    • United States State Supreme Court (New York)
    • May 7, 2014
    ...that she is the legitimate child of both parents.12Id. at 734–35, 853 N.Y.S.2d 501,citingDRL § 73; State of New York ex rel. H. v. P., 90 A.D.2d 434, 457 N.Y.S.2d 488 (1st Dept.1982); Laura G. v. Peter G., 15 Misc.3d 164, 830 N.Y.S.2d 496, (Sup.Ct., Delaware Cty.2007). Similarly, in Matter ......
  • Department of Social Services on Behalf of Sandra C. v. Thomas J.S.
    • United States
    • New York Supreme Court — Appellate Division
    • March 19, 1984
    ...1, 7, 170 N.E. 471; see, also, Matter of Fay, 44 N.Y.2d 137, 142, 404 N.Y.S.2d 554, 375 N.E.2d 735; State of New York ex rel. H. v. P., 90 A.D.2d 434, 437, 457 N.Y.S.2d 488; Matter of Backus v. Backus, 72 A.D.2d 893, 422 N.Y.S.2d 161; Matter of Gray v. Rose, 32 A.D.2d 994, 302 N.Y.S.2d 185;......
  • Miller-Jenkins v. Miller-Jenkins, No. 04-443.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 4, 2006
    ...928 (1983) (husband who orally consented to artificial insemination of wife estopped from denying fatherhood); State ex rel. H. v. P., 90 A.D.2d 434, 457 N.Y.S.2d 488, 492 (1982) (wife estopped from denying husband's paternity where she fostered parent-child relationship); Brooks v. Fair, 4......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...to inquire into the cause of restraint or detention and to enforce a right to be released from such confinement (People ex rel. H v. P, 90 A.D.2d 434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.......
  • Request a trial to view additional results

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