Summary
recognizing if truth about paternity can be discovered, and equity does not demand otherwise, presumption of legitimacy should not be used to perpetuate a falsehood
Summary of this case from Callender v. SkilesOpinion
July 13, 1995
Appeal from the Family Court, Albany County, Beverly Cipollo Tobin, J.
Arroyo, Copland, Rosenbaum Flaherty, Albany (Shawn D. Flaherty of counsel), for appellant.
Richard W., Esperance, respondent pro se.
Petitioner maintains that he is the father of a daughter born to respondent on April 29, 1993. Respondent, who married her present husband, William Y., in November 1992, admits to having had unprotected sexual intercourse with both petitioner and William on different occasions near the probable date of conception. Family Court, following a hearing, found respondent's admission that she had engaged in sexual relations with petitioner at the relevant time, coupled with results of a human leucocyte antigen test showing a 99.53% probability that petitioner is the child's father, sufficient to overcome the presumption of legitimacy that arises when a child is born to a married woman (see, Matter of Lane v. Eno, 277 App. Div. 324, 325), and entered an order of filiation declaring petitioner to be the child's father. Respondent appeals.
There is no indication that any scientific test was performed to determine whether William could be the child's father.
Although neither party has raised the issue, petitioner's claim, which was promptly pressed, cannot fairly be resolved without first having William joined as a party respondent. Historically, neither the child whose paternity was at issue nor the mother's husband has been deemed a necessary party to a paternity proceeding (see, Commissioner of Pub. Welfare of City of N.Y. v. Koehler, 284 N.Y. 260, 267). However, this principle was premised upon the fact that, when it was embraced a paternity proceeding had no effect on the child's legal status, but was intended only as a means of securing support (see, supra, at 266-267). In the interim, however, the Legislature amended Family Court Act § 522 to include "a person alleging to be the father" as a proper petitioner to commence a paternity proceeding (L 1976, ch 665, § 6, eff Jan. 1, 1977). As a result of this amendment "and numerous other laws conferring rights and benefits flowing from an order of filiation" (Matter of Sharon GG. v. Duane HH., 95 A.D.2d 466, 467-468, affd 63 N.Y.2d 859), the consequences of a proceeding of this type — both for the child and for the involved adults — are now considerably greater than they have been in the past (see, Matter of Cathleen P. v. Gary P., 63 N.Y.2d 805, 807; Matter of Kordek v. Wood, 90 A.D.2d 209, 213). This, along with the development of accurate scientific methods for demonstrating the nonpaternity of a large majority of males who are not actually the father (see, Matter of Department of Social Servs. [Sandra C.] v. Thomas J.S., 100 A.D.2d 119, 122-123; 1 Schatkin, Disputed Paternity Proceedings § 8.08 [4th rev ed]), has made it more realistic to view a paternity proceeding as a means of actually and conclusively determining the identity of a child's biological father (see, Matter of Commissioner of Social Servs. [Celia D.] v. Hector S., ___ A.D.2d ___, 1995 N.Y. Slip OP 05763 [1st Dept, June 13, 1995]; Matter of Gorton v. Gorton, 123 Misc.2d 1034, 1036).
Accordingly, where, as here, a mother's husband has been a substantial presence in the child's life and desires to continue to exercise parental rights, the need for joining him, as a party whose interests "might be inequitably affected by" the resulting order of filiation (CPLR 1001 [a]), is manifest and may be ordered by the court on its own motion (cf., Matter of Tyrone G. v. Fifi N., 189 A.D.2d 8, 15-16; Albert C. v. Joan C., 110 A.D.2d 803, 804).
Moreover, with the joinder of William as an "alleged father", the court can order him to submit to a blood test (see, Family Ct Act § 532 [a]; CPLR 3121 [a]), the results of which, if they exclude him as the child's father, will provide the clear and convincing evidence petitioner needs to rebut the presumption of legitimacy (see, e.g., Ghaznavi v. Gordon, 163 A.D.2d 194, 195). And if William refuses to submit to the test, an adverse inference may then be drawn against him (see, Fitzgerald v Tamola, 199 A.D.2d 122, 123; Matter of Joseph P.M. v. Boyce R., 127 Misc.2d 931, 933-934). This is not to suggest that the presumption of legitimacy should not continue to govern when the truth cannot be known with reasonable certainty (as, for example, if the blood test results do not rule out William as the child's father). But if the truth can be discovered, and equity does not demand otherwise, the presumption should not be utilized to perpetuate a falsehood (see, Matter of Constance G. v. Herbert Lewis L., 119 A.D.2d 209, 211, lv dismissed 70 N.Y.2d 667).
Lastly, the joinder of William as a respondent will also serve the child's interest in having her paternity decided swiftly and finally, for a decision rendered in a proceeding in which he is not a party cannot bind him, and leaves open the possibility of a later order declaring him to be the father (see, Matter of Tyrone G. v. Fifi N., supra, at 14; cf., Matter of Cathleen P. v Gary P., 63 N.Y.2d 805, 808, supra).
Since the matter must be remitted, we deem it advisable to note our agreement with respondent's contention that, given the unique factual posture of this case and the serious consequences its resolution will have for the child, appointment of a Law Guardian to represent her interests would be judicious (see, Matter of Commissioner of Social Servs. of City of N.Y. [Betzaida D.] v Lazaro F., 99 Misc.2d 408, 409-410; cf., Matter of Leon L. v Carole H., 210 A.D.2d 484, 484-485; Johannessen v. Johannessen, 148 A.D.2d 894, 895-896).
MIKOLL, J.P., MERCURE, CREW III and CASEY, JJ., concur.
Ordered that the order is reversed, on the law and the facts, without costs, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court's decision.