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Court Looks at Jursidiction in Paternity Suit

A New York Family Lawyer said the issue presented to the court is an interpretation of Section 521 of the Family Court Act, which states that whether the Family Court has jurisdiction when a non-resident petitioner child institutes a paternity proceeding against an alleged non-resident, who is found within a county of New York State.

A New York Custody Lawyer said the petitioner child was and still is a resident of New Jersey who has instituted a paternity proceeding against an alleged resident respondent father. The petitioner child, who has always been a non-resident, was born and has always lived in New Jersey. The respondent alleges that his only presence in New York State is that he works in Kings County.

A Westchester County Family Lawyer said the verified paternity petition was filed and a summons was issued and addressed to him and was sent by regular mail by the clerk of the court notifying him to appear on August 10, 1973. Upon the respondent father’s failure to appear a warrant was issued for his arrest.

Subsequently, the respondent appeared in court with his attorney to contest the jurisdiction of the Court over the subject matter and person of the respondent and denied the allegations of the petition. At a hearing, the respondent’s attorney again contested the court’s jurisdiction.

The respondent moved to dismiss upon the grounds that he had been a resident of the State of New Jersey for over two years, offering several exhibits to substantiate the claim, as well as the non-residence of the petitioner, the respondent and the child plus the fact that the child was born in New Jersey and the respondent also moved to dismiss alleging that the Family Court lacks personal jurisdiction over the respondent due to the alleged defective service.

A Westchester County Custody Lawyer said the County court have jurisdiction over the subject matter. Section 521 of the Family Court Act is now the sole basis for determining jurisdiction in paternity proceedings and provides that proceedings to establish paternity may be originated in the county where the mother or child resides or is found or in the county where the putative father resides or is found. The fact that the child was born outside of the state of New York does not bar a proceeding to establish paternity in the county where the putative father resides or is found or in the county where the mother resides or the child is found.

The aforementioned section superseded Sections 122 and 135 of the Domestic Relations Law and Section 64 of the New York City Criminal Courts Act. The former sections were repealed simultaneously with the effective date of the Family Court Act, September 1, 1962 the latter section was repealed on September 1, 1963.

Due to the paucity of decisions interpreting Section 521 of the Family Court Act the County court review the prior statutes and the case law in the order to better discern the legislative intent behind the enactment of Section 521 of the Family Court Act.

Former Sections 122 and 135 of the Domestic Relations Law stated in part that complaints may be made in the county where the mother or child resides or is found or in the county where the putative father resides or is found. It is not a bar to the jurisdiction of the court that the complaining mother or child resides in another county or state, if the defendant be a resident of the state. In addition Section 64 of the New York City Criminal Courts Act stated in part that proceedings may be instituted if the mother or child resides or is found in the city of New York, or if the putative father resides or is found in the city of New York.

The Court, reasoned that while Section 64 of the New York City Criminal Courts Act conferred jurisdiction if the putative father either resided in or was found in the City of New York, it was limited by Domestic Relations Law which allowed a mother or child who resided in another county or state to bring a paternity action and the Court would have jurisdiction only if the defendant is a resident of the State of New York. The Court further stated that if there were no provision for the defendant’s residence in New York in Section 135, the mere finding of the defendant in New York City would be sufficient to confer jurisdiction.

Under the law existing prior to the enactment of the Family Court Act in order for the Court to obtain jurisdiction over a paternity proceeding brought by a non-resident complainant, the defendant had to be a resident of the State of New York. The controlling provision was Section 135 of the Domestic Relations Law. However, at the time of the enactment of the Family Court Act, Section 135 of the Domestic Relations Law was repealed. Therefore commencing on September 1, 1962, Section 521 of the Family Court Act is the sole basis for the Family Court’s jurisdiction in paternity proceedings.

A close scrutiny of the wording of Section 521 of the Family Court Act reveals that if either the petitioner or the respondent is found in a county of New York State a paternity proceeding may be commenced in that county. The aforementioned section specifically states that the fact that the infant was born outside of the State of New York is not a bar to a paternity proceeding brought in the State of New York.

The insertion of the words ‘is found’ in the statute must have some purpose–otherwise they are superfluous. In the Court’s opinion they were inserted to cover that group of respondents, who are constantly on the move and have no real roots in any state. To require that a respondent have a residence or domicile would defeat the very purpose of their words. Certainly, a person such as the respondent in this case, who has been employed in Kings County for a number of years by one employer should fall within the magic words ‘is found’ and should be subject to the jurisdiction of the County Court. In fact, the place of employment is far more important than residence or domicile.

In the instant matter the petitioner has appeared in person before the County court. Therefore, applying the rationale of the Court of Special Sessions of City of New York, she ‘is found’ in Kings County and thus entitled to bring a paternity proceeding in this state. The respondent by working in Kings County ‘is found’ in said county.

The limitation that the respondent be a resident of New York which had been imposed by Domestic Relations Law Section 135 has now been repealed. Thus applying the wording of Section 521 of the Family Court Act, the County court has jurisdiction over the subject matter involved in the instant matter.

The court finds that the service of process on the respondent was defective. It was adduced at the hearing that service was by ordinary mail. The requirements of Section 525 of the Family Court Act have not been met and the County Court lacks personal jurisdiction over the respondent father. The County court must vacate the service of the summons on the ground of improper service. The petitioner child may, if advised, serve the respondent father as required by the statute.

As much as possible, family issues should remain within the family. However, there are instances that lawyer’s intervention is necessary. If you want to pursue a family related lawsuit, the Kings County Family Lawyers together with the Kings County Child Custody Attorneys are the best options from Stephen Bilkis and Associates.

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