Anonymous v. Anonymous

• Decision Date: 06 May 1968
• Parties: In the Matter of the Paternity Petition of ANONYMOUS, Petitioner, v. ANONYMOUS, Respondent.
• Court: New York City Court

Page 792

289 N.Y.S.2d 792

56 Misc.2d 711

In the Matter of the Paternity Petition of ANONYMOUS, Petitioner, v. ANONYMOUS, Respondent.

Family Court, City of New York, Kings County.

May 6, 1968.

Burton Pomerantz, New York City, for petitioner.

Norman Meltzer, New York City, for respondent.

LUIGI R. MARANO, Judge.

After trial in this filiation proceeding in which the Respondent had denied paternity, I adjudged the Respondent to be the father of the infant child born in January, 1967. I thereupon made an order directing the respondent to pay the sum of $15.00 weekly to the Petitioner, together with the hospitalization coverage.

It appears that the Respondent is now married to a third party other than the Petitioner. The Petitioner resides with her mother and several brothers and sisters in her mother's home. It appears further that the Petitioner's family and friends, (other than her mother,) are under the impression that the Petitioner hurriedly married a soldier who immediately was shipped to Viet Nam where he was killed.

I now have before me an application by the Respondent for visitation rights, which the Petitioner is vigorously opposing.

This, being a filiation proceeding, is a civil action designed to protect the welfare of the child and, therefore, statutes covering such proceedings should be liberally construed. Schaschlo v. Taishoff, 2 N.Y.2d 408, 161 N.Y.S.2d 48, 141 N.E.2d 562 (1957); Gordon v. Coe, 54 Misc.2d 967, 283 N.Y.S.2d 787.

We need not look to any statute for authority to entertain an application for visitation rights since this rests squarely on the broad power of equity to make such determination as is dictated by the consideration of the welfare of the child. Generally, the power rests with the Family Court to make any order in matters within its jurisdiction, including permission for visitation. Anonymous v. Anonymous, 50 Misc.2d 43, 269 N.Y.S.2d 500.

Our Courts have come a long way from the common law which held that an illegitimate child was filius nullius, the child of no one, the community, not its natural parent, being responsible for its support. Duerr v. Wittmann, 5 A.D.2d 326, 171 N.Y.S.2d 444.

The matter of visitation is a species of custody and involves correlative control over and, therefore, interference to some extent in the upbringing of the child. People ex rel. Meredith v. Meredith, 272 App.Div. 79, 87, 69 N.Y.S.2d 462, 471, affirmed 297 N.Y. 692, 77 N.E.2d 8.

Paraphrasing the language of Judge Cardozo in Finlay v. Finlay, 240 N.Y. 429, 433--434, 148 N.E. 624, 625--626, 40 A.L.R. 937, the Court acts as parens patriae to do what is best for the infant and the best interest of the infant is the guiding principle in the determination of custody and rights of visitation.

As a matter of fact, in the Meredith case, the Court stated that although the mother of an illegitimate child is prima facie entitled to its custody when she is a proper and suitable person, that the Court would exercise its function in a case where the mother was unfit to award custody to the father and a fortiori visitation rights. The Appellate Division stated the same consideration for the welfare of the child obtains in England. See Queen v. Barnado, (1891) 1 Q.B. 194, 200.

The Courts, in matters of this kind, have often declared that the Trial Judge is in the best position to evaluate the character of petitioner and respondent and the printed record is not a satisfactory substitute for the first hand observation by the Judge of the parties and witnesses.

In the case of Ex parte Endresen, 277 App.Div. 894, 98 N.Y.S.2d 275, the Court reiterated that the paramount consideration in any determination concerning visitation rights is the welfare of the child and in the matter of Application of Heller, 184 Misc. 709, 54 N.Y.S.2d 734, it was decided that the Court may deny visitation where there is a possibility, however slight, that harm may come to the child if it is granted.

In the 1958 case of Re Anonymous, 12 Misc.2d 211, 172 N.Y.S.2d 186, it was decided in a case where the parties and their 2 children had been living together as a family unit, he would grant visitation rights although he made clear that were this a situation where the children had merely been begotten through a temporary illicit relationship, his decision would be different.

In 1961, the matter of visitation rights of the putative father was before the Appellate Division of the First Department in the case of People ex rel. 'Francois' v. 'Ivanova', 14 A.D.2d 317, 221 N.Y.S. 75, and in a per curiam decision (with Justice Breitel dissenting), the Court reiterating that the Trial Judge was in a unique position to form an estimate of the quality of the parties, sustained the Lower Court habeas proceeding granting visitation rights to the putative father where the parties and the infant lived together as a family unit for upwards of 6 years prior to the commencement of the proceeding.

It must be noted, however, that in the Ivanova case, Justice Breitel in his dissenting opinion, did set forth what would appear on first blush to be substantially cogent reasons for totally denying visitation rights to a putative father.

My research would indicate the last written opinion in New York on the subject is the well reasoned case decided by Judge Hugh Ross Elwyn. In the matter of Cournell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318, where the natural mother and the putative father had been living together on and off at various times, that the father might have some visitation rights, only with the mother's consent.

In the case of Godinez v. Russo, 49 Misc.2d 66, 266 N.Y.Supp.2d 636, the Court disagreed with the distinction between legitimate and illegitimate children insofar as the latter in...