Opinion
December 21, 1970
Appeal by the petitioner from an order of the Family Court of Fulton County, entered April 13, 1970, and a supplemental order dated November 30, 1970 which found that the respondent was not the father of the petitioner's illegitimate child and dismissed the paternity proceedings. It appears that the crucial factual issue in this case was whether or not the respondent indulged in sexual intercourse with the petitioner in December of 1968. The respondent admitted that he had such a relationship with the petitioner during the summer of 1968 and specifically in November of 1968. It was established that in December of 1968 he took the petitioner to a party at which he overindulged in alcoholic beverages and that when they left the party to return home the petitioner drove the respondent's automobile. The petitioner claimed that during the course of the trip home they stopped long enough to indulge in sexual intercourse, however, the respondent denied such an occurrence. Besides denying any such illicit conduct during the month of December, 1968, the respondent established that the petitioner had on various occasions during that month been seen in the company of another specific male. However, the record does not establish that the other male and the petitioner were together during the month of December or at any time near the period of conception under such circumstances as would reasonably indicate a probability or even a possibility that sexual intercourse occurred between the petitioner and the other male. Upon the present record the petitioner established by clear and convincing proof that there was an illicit relationship between herself and the respondent at and about the time of conception and the respondent's unsupported denial of indulging in such conduct in the privacy of his automobile in the month of December, 1968 presents the most minimal of defenses. There are no substantial questions upon the present record, the determination of which would permit a finding that the respondent is not the father of the illegitimate child. The evidence of paternity is both clear and convincing and the preponderance of the evidence requires a finding of paternity in accordance with the facts recited hereinabove. Orders reversed, on the law and the facts, with costs, and matter remitted to Family Court of Fulton County for further proceedings not inconsistent herewith. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.