629 N.Y.S.2d 512 | N.Y. App. Div. | 1995
OPINION OF THE COURT
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,
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 NY 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
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 aifected 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 AD2d 8, 15-16; Albert C. v Joan C., 110 AD2d 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 AD2d 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 AD2d 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 reason
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 NY2d 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 AD2d 484, 484-485; Johannessen v Johannessen, 148 AD2d 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.
There is no indication that any scientific test was performed to determine whether William could be the child’s father.
