Carmen V. v. Bruce R.
| Decision Date | 08 July 1982 |
| Citation | 454 N.Y.S.2d 197,115 Misc.2d 377 |
| Parties | In the Matter of the Paternity Petition of CARMEN V., * Petitioner, v. BRUCE R.,* Respondent. |
| Court | New York Family Court |
Tamar Benamy, New York City, for petitioner.
Burton Ritter, New York City, for respondent.
Peter Porcasi, Asst. Corp. Counsel, Jamaica, for Dept. of Social Services.
DECISION and ORDER
The sole issue before the Court is the approval of an agreement between the parties pursuant to F.C.A. § 516.
On June 8, 1982, the parties entered into an agreement in court pertaining to the support, education, and maintenance of Bruce Robert Rind, born on December 5, 1976. An order of filiation was previously entered by the Court after an extensive hearing on February 26, 1980. The agreement provides that the respondent shall pay to the petitioner $19,000 for the full support and maintenance of the child including unforeseen accidents, serious illness, or otherwise. In addition, counsel fees of $2,000 will be paid by the respondent directly to the petitioner's attorney. The Commissioner of Social Services has advised the Court that he has no objection to the agreement.
Section 516 of the Family Court Act reads as follows:
(a) An agreement or compromise made by the mother or by some authorized person on behalf of either the mother or child concerning the support of either is binding upon the mother or child only when the court determines that adequate provision has been made and is fully secured and approves said agreement or compromise.
(b) No agreement or compromise under this section shall be approved until notice and opportunity to be heard are given to the public welfare official of the county, city or town where the mother resides or the child is found.
(c) The complete performance of the agreement or compromise, when so approved, bars other remedies of the mother or child for the support and education of the child.
The statutory mandate placed upon the Court is clear: the Court may approve an agreement only when it has determined that adequate provision for the support of the child has been made.
The most recent Court of Appeals decision dealing with child support has held that a child's right to receive adequate support can be modified simply if a change of circumstances is demonstrated. Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518 (1982). As F.C.A. § 516(c) bars any other remedies for the support and education of the child, there is a serious question as to whether or not any agreement pursuant to this statute would be viable.
The United States Supreme Court this term has reiterated in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) that a statute which grants an opportunity for legitimate children to obtain parental support must also grant that opportunity to illegitimate children. Citing Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the Court stated (p. ---, 102 S.Ct. 1549).
If Gomez and the equal protection principles which underline it are to have any meaning, it is clear that the support opportunity provided by the State to illegitimate children must be more than illusory.
This Court is aware that in Bacon v. Bacon, 46 N.Y.2d 477, 414 N.Y.S.2d 307, 386 N.E.2d 1327 (1979), the Court of Appeals upheld the constitutionality of F.C.A. § 516. However, two elements distinguish that holding from the present case. First, Bacon dealt with an agreement entered into prior to any finding of paternity and so prior to the establishing of any rights of the parties. In such a circumstance, the compromise agreement could be a viable exercise of discretion by the parties wherein a settlement such as F.C.A. § 516 contemplates would be valid as an encouragement to settlement of paternity suits. 1
Second, Bacon, supra, was premised on the finding that "Paternity proceedings have traditionally involved complex and difficult problems of proof, and uncertainty as to the outcome is ever present." 46 N.Y.2d at 480, 414 N.Y.S.2d 307, 386 N.E.2d 1327. With the amendment of F.C.A. § 532 in 1981 to permit the admissability into evidence of the results of the human leucocyte antigen blood tissue test, the problems addressed by the Court of Appeals have virtually been eliminated in paternity proceedings. As paternity can be established to a near scientific certainty, much of the doubt as far as ascertaining the biological father of a child has been removed. See Matter of Reid v. White, 112 Misc.2d 294, 296-297, 446 N.Y.S.2d 991 (1982); Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627.
It is, of course, conceivable that a valid agreement can be reached between the parties, as the Court of Appeals noted "since the...
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... ... petition for approval of a compromise agreement--in making its determination "that adequate provision has been made and is fully secured," see Carmen V. v. Bruce R., 115 Misc.2d 377, 378, 454 N.Y.S.2d 197, or whether the agreement should be made modifiable under certain circumstances, Bacon, supra ... ...
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