Tree v. Ralston

• Decision Date: 08 April 1970
• Citation: 309 N.Y.S.2d 229,62 Misc.2d 582
• Parties: In the Matter of the Paternity Petition of * Susan TREE, Petitioner, v. * Thomas RALSTON, Respondent. Family Court, City of New York, New York County
• Court: New York City Court

Page 229

309 N.Y.S.2d 229

62 Misc.2d 582

In the Matter of the Paternity Petition of ^* Susan TREE, Petitioner, v. * Thomas RALSTON, Respondent Family Court, City of New York, New York County.

April 8, 1970.

Morton P. Cowen, Levine & Cowen, New York City, for petitioner.

Arnold W. Arnold, New York City, for respondent.

DECISION AND ORDER

M. MICHAEL POTOKER, Judge.

At the conclusion of the hearing in this paternity proceeding, the attorney for respondent moved the court to direct that the parties undergo a polygraph test to assist the court in determining their credibility. Counsel acknowledges that there is no legal authority for his request but insists that in matters of this kind where the parties offer no evidence or proof except their own testimony, the court is asked to make a determination solely upon the self-serving declarations of the respective parties.

In recent articles published in the New York Law Journal under Notes and Views on December 11 and 12, 1969, Sidney B. Schatkin, a former Assistant Corporation Counsel of the City of New York and author of the legal text, 'Disputed Paternity Proceedings,' (MATTHEW BENDER & CO., publishers), discusses the issue of paternity proceedings and the lie detector. The author prefaces his treatise with the debate that ensued in the English House of Lords on a proposed bill to authorize blood tests in paternity cases and where Lord Merthyr observed as follows: 'In my experience of these cases, there is no class of case in which there is a greater degree of perjury in the courts. In the cases which are fought at all, there is always a flat denial by one side or the other of the facts at issue.'

Mr. Schatkin discloses that Richard O. Arther, director of the National Training Center of Lie Detection, reported the results of the use of the polygraph in a series of 312 consecutive paternity cases in Chicago, Illinois. (Arther: The Polygraph Studies, Vol. II, No. 1, July-August, 1967 as follows: 'In that series of 312 paternity cases, 93 percent of the 589 parties and witnesses orally admitted to the polygraphists that they had committed perjury when testifying in court.'

The use of the lie detector in paternity cases has been in use in Orange County, California since 1959 and the results have been admitted into evidence upon stipulation with defense attorneys. It is conceded that no such use of the polygraph is made in this state. The court is fully cognizant of the burden placed upon it in determining the truthfulness of the parties and their witnesses. It is precisely for that reason that the appellate courts insist that a filiation order must be supported by a decision containing adequate findings of fact * * * and that a higher standard of proof is required in such cases (Gray v. Rose, 30 A.D.2d 138, 290 N.Y.S.2d 647).

In Matter of Harris v. Doley, 22 A.D.2d 769, 253 N.Y.S.2d 645, the court held that a decree by the Family Court following a trial in a paternity proceeding must conform to the requirements of CPLR 4213, subd. (b) and must state the facts deemed essential to support the determination. See also, Sager v. Sager, 21 A.D.2d 183, 249 N.Y.S.2d 467; Fitzsimmons v. DeCicco, 44 Misc.2d 307, 253 N.Y.S.2d 603.

It is also precisely for the same reason that the standard of proof required to establish paternity in filiation proceedings is that such proof be entirely satisfactory. (Commissioner of Welfare of City of New York v. Wendtland, 25 A.D.2d 640, 268 N.Y.S.2d 547; Gray v. Rose, Supra, and numerous other cases).

In Martin v. Lane, 57 Misc.2d 4, 291 N.Y.S.2d 135, the court held that in a paternity proceeding, evidence required to sustain order of filiation should be entirely satisfactory, and burden of proof of mother must go beyond mere preponderance of evidence, and such evidence must be so clear and convincing as to reach the point of entire satisfaction.

An accusation of paternity requires proof of entirely satisfactory evidence sufficient to create a genuine belief in mind of trier of facts that respondent, and no one else, is father of the child in question (Tilson v. Bark, 52 Misc.2d 338, 275 N.Y.S.2d 600).

Our courts judicially recognize the accuracy and reliability of an ordinary speedometer, a radar speedometer and an electrical 'speed-watch' device in traffic cases. Tests based upon the Harger Drunkometer, which by measuring the alcohol in the breach enables the weight of alcohol in the blood to be calculated, are also admissible in evidence (People v. Davidson, 5 Misc.2d 699, 152 N.Y.S.2d 762).

Blood grouping tests are relevant on the issue of paternity and in many instances the result may very well be the only defense available to a respondent. The blood grouping test is authorized by sections 532 and 418 of the Family Court Act, Code of Criminal Procedure, Sec. 684--a and CPLR...