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Erie County Commissioner of Social Services v. Boyd
Citations: 74 A.D.2d 728; 1980 N.Y. App. Div. LEXIS 10419; 425 N.Y.S.2d 692
Court: Appellate Division of the Supreme Court of the State of New York; February 19, 1980; New York; State Appellate Court
Order reversed unanimously, with no costs, and the matter remitted to Erie County Family Court for further proceedings. The petitioner appealed a Family Court order dismissing her paternity petition due to insufficient evidence to establish paternity by "clear and convincing evidence." The court required expert medical testimony to demonstrate that the baby was born after a normal gestation period. Petitioner testified to intercourse with the respondent on three occasions: January 1-2, January 8, and January 11, 1977, with the baby being born on September 26, 1977. The respondent admitted to intercourse only on January 11, denying the earlier dates. The court acknowledged intercourse on January 8 but not before January 1. Judicial notice was taken that a normal gestation period is 280 days from the last menstrual period; however, if impregnation is dated, gestation is 266 days. The court determined that intercourse occurred between 261 and 268 days before delivery, which falls within the expected range for a first pregnancy, negating the need for expert evidence. The respondent argued that paternity was not established even without expert testimony, but this argument involves credibility issues not addressed by Family Court. Therefore, the case is remitted for further findings and determinations by Family Court.