Cheryl B v. Alfred W. D
| Decision Date | 22 June 1979 |
| Citation | 418 N.Y.S.2d 271,99 Misc.2d 1085 |
| Parties | In the Matter of the Paternity Petition of the Commissioner of Social Services of the City of New York as assignee of CHERYL B, Petitioner, v. ALFRED W. D, Respondent. |
| Court | New York Family Court |
This is a motion to vacate two orders of filiation entered on August 3, 1978 adjudging the respondent to be the father of the children, D and L out of wedlock to Cheryl B . This proceeding was commenced by the Commissioner of Social Services as assignee of Ms. B .
Although a motion to vacate an order of a judge of coordinate jurisdiction should be referred to the judge who entered the order, CPLR 2221, this court is entertaining this motion since the judge who presided at the initial proceeding is no longer a judge of this court.
On August 3, 1978 the respondent waived counsel after the court advised him that he had a right to such representation. Thereafter the court inquired of Mr. D whether he was the father of the child D . (Tr. p. 3). The respondent admitted paternity. On further questioning, the respondent stated that, (Tr. p. 3). Subsequently after the admission to paternity the court advised the respondent of his right to a blood test and of his ensuing legal obligations upon adjudication of paternity. Noting that there were, in fact, two petitions before the court, the respondent was then asked if he admitted paternity of the children, D and L . The respondent again acknowledged that they were his children.
The respondent now contends that he was coerced by the petitioner's assignor, Ms. B , into admitting paternity, under the threat of embarrassing the respondent by litigating the matter in open court. Further, the respondent alleges that he did not understand the nature of the proceedings, his confusion being compounded by the respondent's appearance without counsel.
Although proceedings under Article 5, F.C.A. are civil in nature, Matter of Miller v. Gordon, 58 A.D.2d 1027, 397 N.Y.S.2d 500 (4th Dept. 1977), respondent, are entitled to an allocution encompassing the full complement of statutory rights as set forth hereinafter.
Before any inquiry is made of the respondent relative to the merits of the petition it is incumbent upon the court to advise a respondent of his " right to be represented by counsel of his own choosing, of his right to an adjournment to confer with counsel, and of his right to have counsel assigned by the court in any case where he is financially unable to obtain same . . . " F.C.A. § 262(a)(vii). Due to the legal consequences of an adjudication of paternity upon the rights of out of wedlock children, the legitimate children of putative fathers and the obligations of putative fathers, this statutory right must be zealously protected.
Pursuant to F.C.A. § 531, a respondent shall not be compelled to testify, and must be advised of this statutory right prior to the commencement of the proceeding. Indeed, it has been held to be error for a court to question a respondent without first advising him of his right to refuse to testify, especially when a respondent appears without counsel. Matter of Morizzo v. Arthur N., App.Div., 415 N.Y.S.2d 442 (2nd Dept. 1979); Matter of Rodriguez v. Purdy, 56 A.D.2d 804, 392 N.Y.S.2d 650 (lst Dept. 1977); but cf. Matter of Bido v. Albizu, 36 A.D.2d 537, 318 N.Y.S.2d 547 (2nd Dept. 1971).
Under F.C.A. § 532, the court on motion of any party "shall advise the parties of their right to a blood test . . . to determine whether or not the alleged father can be excluded as being the father of the child." In addition, if the putative father is unable to pay for the costs of the test, the court may direct payment from the public coffers. To deny or impair a respondent's access to a blood test would deprive him of a substantial right the opportunity to be conclusively excluded as the father, as a matter of law. Matter of Schleimer v. Swann, 93 Misc.2d 520, 402 N.Y.S.2d 897, (Fam.Ct.Rockland Co.1978); Matter of Torino v. Cruz, 82 Misc.2d 684, 369 N.Y.S.2d 291, (Fam.Ct.Bronx Co.1975). The court in Matter of Department of Social Services v. Reese, 95 Misc.2d 629, 408 N.Y.S.2d 248, (Fam.Ct.Wayne Co.1978) stated that the right to a blood test is unqualified.
In view of the foregoing, the circumstances in the case at bar warrant vacaturof the orders of filiation. The allocution, which the...
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