Opinion
May 18, 1992
Appeal from the Family Court, Suffolk County (Doyle, J., Abrams, J.).
Ordered that the orders are affirmed, without costs and disbursements.
On appeal the petitioner contends that she established the respondent's paternity of her son by clear and convincing evidence (see, Matter of Jane PP. v. Paul QQ., 65 N.Y.2d 994; Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137), and that the Family Court erred in not so holding. We disagree.
It is well settled that the findings of a hearing court in a paternity proceeding are entitled to great weight and, generally, should not be disturbed on appeal unless they are found to be contrary to the weight of the evidence (see, Matter of Shirley R. v. Ricardo B., 144 A.D.2d 472, 473). The Family Court concluded that the petitioner's testimony was not credible, and a review of the record, which reveals that her testimony was contradictory and vague in several key instances, supports the court's finding. Significantly, we note that the petitioner admitted that she was engaged in a continuing sexual relationship with a former boyfriend during the period of time when her child was conceived. The petitioner also named the former boyfriend as the child's father on his birth certificate, identified him as the child's father to her friends, and maintained that he was the child's father during a proceeding to regain custody of the child from his foster parents some years after his birth. Furthermore, the petitioner's testimony did not convincingly demonstrate that she was engaged in a sexual relationship with the respondent during the period of conception. Although the petitioner introduced the results of a human leucocyte antigen test which indicated a high probability of paternity, the respondent's expert witness placed a lesser degree of probability on the test results. Moreover, while such test results are highly probative, they are not conclusive (see, Matter of D'Elia v. Curtis S., 183 A.D.2d 768; Matter of Laura U. v. Mark V., 156 A.D.2d 836; Matter of Denise H. v. John C., 135 A.D.2d 816). Accordingly, under the circumstances of this case, the Family Court's determination was not against the weight of the evidence.
We have reviewed the petitioner's remaining contention and find it to be without merit (see, Kawasaki v. Kasting, 124 A.D.2d 1034; Thayer v. Blando, 40 A.D.2d 886; Allied Scrap Salvage Corp. v State of New York, 26 A.D.2d 880). Bracken, J.P., Lawrence, Eiber and Santucci, JJ., concur.