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Court Decides Issue Related to Paternity Proceeding


A New York Family Lawyer said this is a proceeding brought by the mother of two out-of-wedlock children, all residing in Florida, for their support by their New York putative father. The issue is whether an adjudication of the father’s paternity in a prior proceeding between these parties, and his acknowledgment therein of paternity, are binding and sufficient basis for an order of support, in the face of his contentions that he was then unrepresented by counsel and that the adjudicating court lacked jurisdiction.

A New York Custody Lawyer said the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Westchester County Family Lawyer said the respondent father denies the mother’s claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children’s Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

A Westchester County Custody Lawyer said the father contends on several grounds that the Children’s Court was not a court of competent jurisdiction within the meaning of the above USDL provision on out-of-wedlock children, and that its adjudication therefore does not establish his present liability for child support.

The argument that the father was, at the time of the 1962 hearing in Nassau County, then residing in Bronx County, having moved there from Nassau three days before, does not warrant extended discussion. The father had been personally served 13 days before the hearing in Nassau County, where he was then residing and domiciled; and it is clear that the Court’s jurisdiction thus acquired over him was not terminated by his departure from the County. Further, although he was not represented by an attorney, his appearance without raising the issue of his change of residence to another County in New York State, waived any possible objection on this ground, for it does not relate to any basic right or element of the cause of action.

The next question relating to the 1962 proceedings is whether the Court lacked jurisdiction as to the older child, born in 1958, because of a time limitation on paternity actions. The USDL contains no limitation provisions. However, in 1962, as at present, New York’s limitation was that proceedings to establish the paternity of the child shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been acknowledged by the father in writing or by furnishing support.

At the outset, the difference in result under the USDL paternity section and the New York provision must be noted. The USDL permits the court to base an adjudication on the father’s acknowledgment of paternity in open court, regardless of the lapse of time since the child’s birth; under the New York provision–if given the construction that seems required (described above)–the court cannot even entertain a paternity petition more than two years after the child’s birth unless the petitioner shows that there has been an acknowledgment.

This restriction would be even more unfortunate for out-of-state petitioners than in-state (though the statute is badly in need of amendment for the latter as well). For the USDL omits the New York provision for proof of acknowledgment of an out-of-wedlock child by any writing or by furnishing child support, nor does it allow a determination of paternity on the basis of evidence as to sexual relations, etc., as is permissible in instate proceedings. These differences between USDL and local proceedings are unavoidable; to elicit evidence on such issues on an ex parte basis, without confrontation and cross-examination, might well be both unwieldy and unfair.

The opportunity in USDL proceedings for adjudication on the basis of an acknowledgment in open court, regardless of the age of the child, is at least some compensation for the other disadvantages suffered by out-of-state illegitimate children in securing child support.

Since the USDL calls for a free and open acknowledgment, rather than any taking of evidence, the omission of a time limitation works no unfairness to the respondents. Thus the USDL provision is well-adapted to the exigencies of securing support for out-of-wedlock children from out-of-state fathers, and its efficacy must not be defeated by the injection of a State limitation period.

The law of the forum undoubtedly controls any matters of procedure that the USDL fails to cover. However, even if the New York provision were to be construed as a defensive statute of limitations and as a matter of procedure rather than substance, it must be held inapplicable in USDL proceedings; for the general rule as to use of State procedure must be subordinated to effectuation of USDL’s specific and well-tailored paternity provision.

While the major recent developments in the constitutional right to counsel have related to criminal rather than civil proceedings, the right of those unable to afford counsel to assigned attorneys has also been recognized to some extent when the proceeding, though civil, has especially grave consequences. Since a paternity adjudication has effects over and above the usual civil proceedings, the Court believes that due process requires assignment of counsel in paternity proceedings in situations of particularized need, though neither abstract justice nor practical experience argues for a rule of routine assignment. However, the Court concludes that no such particularized need existed.

It is clear from the remainder of the hearing that the father was at all times fully aware of its purpose and effect, nor is there any indication whatsoever of any issue on which he either was, or felt, in need of counsel. His ready acknowledgment of paternity was obviously based on the fact that he had never doubted it, having lived with the children’s mother, as he testified, like a wife for a considerable period, and on his hope that she and his children would return to him.

Further, the father had at least a modicum of sophistication in the matter of matrimonial litigation and financial concerns. Under the circumstances of this case there is no basis for a conclusion that the 1962 proceedings violated due process because he was unrepresented or because the Court failed to offer to assign counsel if he was unable to retain an attorney.

The present petition must be granted even apart from the binding force of the 1962 adjudication, because of the father’s acknowledgment of paternity in open court during the 1962 proceeding. The USDL provision for support of out-of-wedlock children must be interpreted and applied with fairness towards the father, but at the same time with the objective of removing so far as possible the obstacles to equal treatment of the illegitimate with the legitimate child. The father’s motion for dismissal of the petition is denied.

If your partner denied your children not just of support but of paternity, you can seek the legal help of the Nassau County Family Lawyer together with the Nassau County Child Support Attorney. Stephen Bilkis and Associates can also provide you with the Nassau County Spousal Support Lawyer to help you fight for you and your children’s rights.

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