Terri OO. v. Michael QQ.

Yesawich, Jr., J.

Appeal from an order of the Family Court of Saratoga County (James, J.), entered May 20, 1986, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 5, to adjudicate respondent as the father of petitioner’s child.

A child was born to petitioner on June 21, 1985; petitioner was then, and remains, unmarried. Prior to a Family Court hearing to determine paternity, respondent, the alleged father, obtained an order requiring him, petitioner and the child to submit to a human leukocyte antigen (HLA) blood tissue test, which yielded a resulting possibility of paternity of 99.1%.

At the hearing, petitioner, who appeared pro se, testified to having had a relationship with respondent from June 1984 until October 1984 during which numerous acts of sexual intercourse occurred. She also testified she had sexual intercourse on two occasions with a man other than respondent during September 1984 and October 1984 — ostensibly the time of conception. Additionally, petitioner acknowledged being with still another man in New Mexico in October 1984 with whom she also had sexual relations, although the precise date was not identified. Respondent testified that before the parties terminated their "live-in” relationship, petitioner was seen with others, presumably the men with whom she testified that she had intercourse. After the hearing, Family Court found respondent to be the father of petitioner’s child.

On this appeal, respondent makes a compelling argument that petitioner failed to carry her burden of establishing paternity by clear and convincing evidence (see, Matter of Jane PP. v Paul QQ., 65 NY2d 994, 996). The undisputed testimony is that petitioner had relations with respondent and two others during the critical period and there is no evidence that contraceptives were used, thus precluding exclusion of either of them on this basis; and, significantly, petitioner admitted that she was unsure who the father was. Furthermore, she was unable to fix the date of her last menstrual period or approximately when conception occurred. Employing the normal gestation period of 266 days, it is obvious that one other than respondent could have fathered this full-term baby. Clearly the testimonial proof does not warrant labeling respondent the father. Nor is the HLA test result, the only other relevant evidence in the record, dispositive of the issue for this testing technique has yet to be recognized as conclusive of paternity (see, Matter of Julie UU v Joseph VV, 108 AD2d 1038, 1039). Since petitioner has not clearly and convincingly demonstrated that respondent is the father, the order of filiation must be reversed.

Order reversed, on the law, without costs, and petition dismissed. Mahoney, P. J., Weiss and Yesawich, Jr., JJ., concur.