On 1 July 2006, plaintiff-husband and defendant-wife got married in New York City

On 1 July 2006, plaintiff-husband and defendant-wife got married in New York City. On or about 7 September 2007 or fifteen months later, plaintiff-husband commenced an action for divorce based on two of the statutory grounds, viz.: constructive abandonment of plaintiff-husband by defendant-wife for a period of one year proceeding commencement of the action, and cruel and inhuman treatment of plaintiff-husband by defendant-wife. Ultimately, plaintiff-husband relied solely on the first cause of action, constructive abandonment, in seeking the divorce. According to plaintiff-husband in his verified complaint, commencing on or about 1 August 2006, and continuing for a period of more than one (1) year immediately prior to commencement of the instant action, defendant-wife refused to have sexual relations with him despite his repeated requests to resume such relations. The complaint stated that there were no children of the marriage. Defendant-wife did not present an answer to the complaint nor did she contest the divorce. Rather, she provided plaintiff-husband with an affidavit. According to defendant-wife in her affidavit, she admits having received the summons and complaint based on constructive abandonment; consented to the matter being placed immediately on the uncontested divorce calendar; on the same day she signed her affidavit, 2 June 2008, the parties, both of whom were represented by counsel, executed a separation and property settlement agreement. Under the agreement, the parties agreed that defendant-wife consents to an uncontested divorce judgment being entered against her under based upon the grounds of constructive abandonment set forth in the first cause of action of the Verified Complaint. As with defendant-wife's affidavit, no mention is made of children, either born or expected. Thereafter, plaintiff-husband promptly placed the case on the uncontested matrimonial calendar for submission. 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 29 July 2008, a judge signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of plaintiff-husband by defendant-wife, and that there are no known children of the marriage and none are expected. Meanwhile, on 19 March 2008, prior to the divorce judgment dissolving the parties' marriage, and prior to defendant-wife having signed her affidavit and the parties having entered their separation and property settlement agreement, defendant-wife gave birth to a baby boy. Apparently, plaintiff-husband was never aware that defendant-wife was pregnant and he only learned about the child after the parties were already divorced. No father was listed on the child’s birth certificate. Here, plaintiff-husband was granted an uncontested divorce from defendant-wife on the ground of constructive abandonment, often referred to as sexual abandonment. As part of pleading his claim of sexual abandonment, plaintiff-husband had to swear to the fact that he and defendant-wife did not have sexual relations for over a year. Defendant-wife now attempts to use that statement to prevent plaintiff-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. According to plaintiff-husband, irrespective of what he stated in the divorce pleadings, the child in question is in fact his child. He then moved for an order directing that genetic marker testing be done so as to conclusively determine paternity, and that, upon such determination, a declaration of paternity and the amendment of the divorce judgment to reflect that the child is indeed the child of the marriage was proper. In opposition, defendant-wife pointed out that plaintiff-husband, in his verified complaint for divorce, alleged that from 1 August 2006 onward she refused to have sexual relations with him; that based on plaintiff-husband's own sworn statements, the child, who was not born until 19 March 2008, cannot possibly be his; that if plaintiff-husband is taking the position that the subject child is in fact his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. Consequently, defendant-wife cross-moved for an order finding that plaintiff-husband has violated the Penal Law, perjury in the second degree. On plaintiff-husband’s motion: In moving for an order compelling paternity testing, plaintiff-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. Here, while it is correct to say that perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration. It must be noted that 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 plaintiff-husband and plaintiff-husband having stepped forward to claim paternity. Under the circumstances, the question of whether plaintiff-husband embellished the truth or even told outright lies in order to obtain the parties' uncontested divorce strikes the court 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 defendant-wife herself played in the divorce proceeding. While defendant-wife was quick to claim that plaintiff-husband's perjury to the court was blatant, obvious and must be punished, she has nevertheless failed to address her own complicity and lack of truthfulness in this matter. Evidently, at no time during the pendency of the divorce action did defendant-wife ever inform plaintiff-husband or the court that she was pregnant or had given birth. Defendant-wife even expressly consented to plaintiff-husband obtaining the divorce based on the allegation that she had refused to have sex with him. For obvious reasons, the granting of the divorce was facilitated by defendant-wife's acquiescing in what plaintiff-husband alleged. Thus, if plaintiff-husband's sworn statement that he and defendant-wife did not have sexual relations after August 2006 was a lie, it can be said then that defendant-wife joined in that lie and benefitted from it when the divorce was granted. Being in pari delicto, defendant-wife does not come before the court with clean hands, and she is scarcely in the position to seek to have plaintiff-husband punished as a perjurer or even to have his words used against him. Moreover, while neither side raised it, one additional factor must be considered and given significant weight, that is, the presumption of legitimacy. The doctrine 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 presumptions known to law. The presumption of legitimacy still holds sway even to this day, for the most part, where it is deemed to be in the child's best interests. The presumption of legitimacy, the child's best interests and plaintiff-husband’s request for paternity testing go firmly hand-in-hand. Plaintiff-husband is already presumed to be the child’s father by virtue of having been married to defendant-wife when the child was born. The child’s best interests 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. A positive paternity test merely provides the means by which any doubt can be definitively erased as to whether plaintiff-husband is indeed the child’s father. Plaintiff-husband’s reasons for seeking to prove paternity are compelling: to legitimatize the child’s birth, establish his parentage and provide him with the benefits of a father-son relationship. Defendant-wife's reasons for objecting to paternity testing, on the other hand, are not compelling; she has not presented any evidence tending to exclude plaintiff-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. Thus, based on equity and the child's best interests, plaintiff-husband must be granted the relief he requested and paternity testing must go forward to conclusively determine if the child is his son. On defendant-wife's cross-motion: Defendant-wife cross-moved for an order finding that plaintiff-husband has violated the Penal Law, which makes it a crime to make a false statement under oath that is material to the proceeding involved. The offense, perjury in the second degree, is a class E felony punishable by up to four years in prison. Here, the application was bereft of merit. 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. Nonetheless, referring the matter to the District Attorney for investigation or prosecution would serve no purpose. It has not been established yet that what plaintiff-husband stated in the verified complaint, that he and defendant-wife did not have sex during the period in question, was indeed untrue. This fact can only be known for sure through a positive paternity test. Even if plaintiff-husband did make a false statement under oath in that matter, it was done for the benefit of both parties so that they could bypass the unreasonable hurdles that New York law imposes on couples who wish to dissolve their marriage by mutual consent. In short, if ever there was a victimless crime, this was it. The fact remains that when both sides agree to a divorce and turn to sexual abandonment as the grounds, the line quickly blurs between what the law requires to have happened and what actually did happen. In many such situations a tacit agreement exists between the parties, their lawyers and even the court that the person taking the divorce will say under oath what he or she needs to say, regardless of what the truth may be, in order for the divorce to be granted. Although the court does not actually condone the act, there are instances of wrongdoing that do not demand its attention in order to keep the society safe and secure. In view of the above, plaintiff-husband’s motion was granted to the extent that genetic marker testing with regard to the child's paternity was ordered to proceed; and defendant-wife's cross-motion was denied in all respects.