109 Misc. 2d 902 | N.Y.C. Fam. Ct. | 1981
OPINION OF THE COURT
In this proceeding under article 5 of the Family Court Act, paternity has been established by clear and convincing proof. The court finds that the respondent had intercourse with the mother over a sustained period of time and particularly during the time of conception. His testimony that he did not have intercourse with her during the summer of 1977 was not credible while admissions that he made to other members of her family were credible.
The child was born May 29, 1978 approximately two weeks overdue which would indicate conception during late August of that year. The respondent tried to establish that the petitioner may have had intercourse with another male but the court is satisfied that that male left the area for another State on or about July 17, 1978. Furthermore, such evidence is not competent or admissible under section 531 of the Family Court Act except when corroborated by other facts and circumstances tending to prove such access.
After the standard blood test was taken and did not exclude paternity, the respondent was given the opportunity to have the more reliable HLA blood test which he refused. At the hearing petitioner’s counsel requested
Petitioner’s motion is denied upon two grounds. First, in amending the first aforesaid sections, the Legislature could have established such a presumption by statute which it declined to do and this court is empowered only to interpret the law and not to make law by judicial decision. Secondly, section 532 of the Family Court Act provides that “The court, on motion of any party * * * shall order the mother, her child and the alleged father to submit to one or more blood grouping tests”. (Italics supplied.) Petitioner failed to make such motion prior to the hearing.