The complainant husband was granted an uncontested divorce from defendant-wife on the ground of constructive abandonment. This cause of action, often referred to as sexual abandonment, is perhaps the ground most widely used in proceedings where both sides agree to the divorce. A New York Criminal Lawyer said that as part of pleading his claim of sexual abandonment, the husband had to swear to the fact that he and his wife did not have sexual relations for over a year. The wife is attempting to use that statement to prevent her husband from seeking to establish that a child born during the course of the marriage, but conceived well after the date on which the parties allegedly stopped having sex, is actually his son.
The husband contends that irrespective of what he stated in the divorce pleadings, the child in question is in fact his child. He moves for an order directing that genetic marker testing be done so as to conclusively determine paternity. Upon such determination, he further seeks a declaration of paternity and the amendment of the divorce judgment to reflect that his son is the child of the marriage.
The wife opposes her husband’s motion in all regards. She points out that her husband, in his verified complaint for divorce, alleged that from August 1, 2006, onward she refused to have sexual relations with him. Thus, based on his own sworn statements, the wife contends that the child, who was not born until March 19, 2008, cannot possibly be his. A New York Criminal Lawyer said the wife further submits that if her husband is taking the position that the child is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. With this regard, the wife cross moved for and order finding that her husband has committed perjury in the second degree.
The parties were married on July 1, 2006, in New York City. Fifteen months later, the husband commenced an action for divorce based on two of the statutory grounds. One was the constructive abandonment of the husband by the wife for a period of one year proceeding commencement of the action; the other was the cruel and inhuman treatment of the husband by the wife. The husband ultimately relied solely on the first cause of action, constructive abandonment, in seeking the divorce.
With respect to his cause of action for constructive abandonment, the husband alleged in his verified complaint that commencing on or about August 1, 2006, and continuing for a period of more than one (1) year immediately prior to commencement of the action, his wife refused to have sexual relations with him despite his repeated requests to resume such relations. The complaint states that there are no children of the marriage.
The wife neither interposed an answer to the complaint nor in any other way sought to contest the divorce. A New York Sex Crimes Lawyer said that instead she provided her husband with an affidavit in which she admitted service of the summons and complaint based upon the grounds of constructive abandonment. She further stated that she was consenting to the matter being placed immediately on the uncontested divorce calendar. On the same day, the wife signed the affidavit of separation and property settlement agreement.
Following the execution of the wife’s affidavit and the couple’s agreement, the husband promptly placed the case on the uncontested matrimonial calendar for submission. It meant that neither party had to appear in court to give testimony because the application for the divorce judgment was to be decided on the papers alone. On July 29, 2008, a judge signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of the husband by the wife. The judgment states that there are no known children of the marriage and none are expected.
On March 19, 2008, the wife gave birth to a baby boy. This event not only predated the divorce judgment dissolving the parties’ marriage, but was prior to the wife’s having signed her affidavit and the parties having entered their separation and property settlement agreement. According to the husband, he was never aware that his wife was pregnant and he only learned about the child after the parties were already divorced. There is no father listed on the child’s birth certificate.
Had the husband commenced the action for divorce in any place other than New York, he could have ended his marriage to his wife without casting any blame. But because New York remains the one state in the nation that requires an allegation of fault as the basis for obtaining a divorce, he had to set forth a fault ground upon which the divorce could be granted. He relied on an allegation of constructive abandonment — that is the refusal by the wife to have sex — to supply the required fault. Because refusing to have sex is seen as having less negative connotations than cruelty or adultery, and because it is more factually nebulous than physical abandonment, constructive abandonment has become the ground of choice in uncontested divorce proceedings. It would be fair to say, however, that when the ground is utilized there is quite often a wide discrepancy between what is said to obtain the divorce and what really has taken place between the parties in the privacy of the marital bedroom. That discrepancy is at the heart of the matter here.
A New York Drug Crime Lawyer said in moving for an order compelling paternity testing, the husband is asking the court to disregard his prior sworn statements that, if true, would exclude him from being the child’s father. Prior sworn statements are routinely used, under the theories of equitable or collateral estoppel, to prevent a litigant from taking a different position at a later point in the same proceeding or in a subsequent case. In cases involving paternity, fathers are frequently barred from denying paternity because of prior statements made to the contrary.
Less common are cases where a false statement has been used to block a party from seeking to prove paternity. The court takes a far different view. Although perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration. The sad truth is that New York’s insistence on fault-based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrongdoing as to grounds, often with immeasurable effects upon a divorcing household. The divorcing household includes an infant boy who, according to his birth certificate, is essentially fatherless. He is in this position despite having been born during the course of his mother’s marriage to her husband and the husband having stepped forward to claim paternity. Under the circumstances, the question of whether the husband embellished the truth or even told outright lies in order to obtain the parties’ uncontested divorce strikes as far less important than resolving the issue of the child’s parentage, something that is undoubtedly in his best interests.
An additional factor to be considered, particularly in weighing the equities, is the role the wife herself played in the divorce proceeding. While she is quick to claim that her husband’s perjury to the court is blatant, obvious and must be punished, she fails to address her own complicity and lack of truthfulness in this matter. It appears that at no time during the pendency of the divorce action did she ever inform him or the court that she was pregnant or had given birth. Moreover, she expressly consented to her husband obtaining the divorce based on the allegation that she had refused to have sex with him. Thus, the granting of the divorce was facilitated by the wife’s acquiescing in what the husband alleged. Simply stated, if her husband’s sworn statement that he and his wife did not have sexual relations after August 2006 was a lie, then she joined in that lie and benefitted from it when the divorce was granted. Being in pari delicto (equal fault), she does not come before the court with clean hands, and she is scarcely in the position to seek to have her husband punished as a perjurer or even to have his words used against him.
Although neither side raises it, there is one additional factor that must be considered and given significant weight. It is the presumption of legitimacy. The doctrine, which holds that a child born during a marriage is presumed to be the legitimate child of that union, has long been described as one of the strongest and most pervasive known to the law. Even in this age of unerringly accurate paternity testing, the presumption of legitimacy still holds sway, particularly where it is deemed to be in the child’s best interests.
The presumption of legitimacy, the child’s best interests and the husband’s request for paternity testing go firmly hand-in-hand. The husband is already presumed to be the child’s father by virtue of having been married to the child’s mother when the child was born. The child’s best interest lie in having his parentage confirmed, his father’s name listed on his birth certificate, and his rights and status attendant to the father-son relationship fully established. And a positive paternity test provides the means by which any doubt as to whether the husband is the child’s father can be definitively erased.
The husband’s reasons for seeking to prove paternity to legitimatize the child’s birth, establish his parentage and provide him with the benefits of a father-son relationship are compelling. The wife’s reasons for objecting to paternity testing, on the other hand, are not compelling. She has not presented any evidence tending to exclude her husband as the child’s father or otherwise disprove legitimacy. Her sole basis for excluding him from being considered as the potential father are the statements he made in the uncontested divorce action — allegations that he was required to make so that the parties could obtain the divorce they both sought. Under the circumstances, equity and the child’s best interests require that the husband be granted the relief he requests and that paternity testing go forward to conclusively determine if the boy is indeed his son.
The wife cross-moves for an order finding that her husband has violated the Penal Law, which makes it a criminal act to make a false statement under oath that is material to the proceeding involved. This offense, perjury in the second degree, is a class E felony punishable by up to four years in prison.
The application is without merit. To begin with, the court, which presides over civil matters, is not the proper forum for determining if there has been a violation of the penal code. Perjury is a criminal offense and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney’s Office and the Grand Jury, not a civil trial court. Where the record suggests that perjury has been committed, the matter may, in the sound exercise of the court’s discretion, be referred to the District Attorney’s Office for investigation.
Suffice it to say that if the District Attorney was intent on prosecuting all the people who, within the context of uncontested divorce proceedings, falsely claim not to have had sexual relations with their spouses, there would be little time left for pursuing other crimes. As with a revelation that a husband or wife has committed the criminal act of adultery by having had sex outside the marriage, there are instances of wrongdoing that do not demand the attention of the People of the State of New York in order to keep our society safe and secure. This is one of them.
The husband’s motion for paternity is granted and the wife’s cross-motion that her husband violated the Penal Law is denied in all respects.
Children are always becomes a trophy in a divorce action. The couple who once promised to be together forever conspires to be granted the right to be separated. If you want to win your legal battle, consult the Bronx County Sex Crime Lawyer or the Bronx County Criminal Attorney from Stephen Bilkis and Associates.