Department of Social Services on Behalf of Daniel P v. Robert B

• Decision Date: 13 March 1986
• Parties: DEPARTMENT OF SOCIAL SERVICES on Behalf of DANIEL P, Petitioner, v. ROBERT B, Respondent.
• Court: New York Family Court

Page 620

500 N.Y.S.2d 620

131 Misc.2d 455

DEPARTMENT OF SOCIAL SERVICES on Behalf of DANIEL P, Petitioner, v. ROBERT B, Respondent.

Family Court, Nassau County,

Part VI.

March 13, 1986.

Edward T. O'Brien, Acting Co. Atty. of Nassau Co., for petitioner; Diane M. Dwyer, of counsel, Deputy Co. Atty., Westbury.

Kenneth Adler, Melville, for respondent.

MEMORANDUM

NORMAN FEIDMAN, Judge.

The facts in this case are not in dispute. The question of law with which the Court is presented is whether or not the commencement of a divorce proceeding against the child's mother terminates the stepfather's duty to pay support for the stepchild, pursuant to a prior court order directing him to pay support for the child, who is placed in the custody of a state agency. The original order was made when the parties were married and was on the consent of the stepfather.

Clearly, a stepparent is required to furnish support for a stepchild placed in the custody of a state agency after the child is adjudicated to be a person in need of supervision. [Family Court Act, Section 415; Dept. of Welfare of the City of New York v. Siebel, 6 N.Y.2d 536, 190 N.Y.S.2d 683, 161 N.E.2d 1 (1959); Eagen v. Robb, 72 Misc.2d 364, 339 N.Y.S.2d 526 (1972); Spenser v. Spenser, 128 Misc.2d 298, 488 N.Y.S.2d 565 (1985) stepparent liable for support of stepchild.]

The stepparent's relationship and duty to support pursuant to Family Court Act, Sec. 415 ceases when the marriage to the natural parent is dissolved be it by divorce, death or any other reason. Only at that time does the obligation of the stepparent to pay for the support of the stepchild end. [Eckhardt v. Eckhardt, 37 A.D.2d 629, 323 N.Y.S.2d 611 (1971); Kaiser v. Kaiser, 93 Misc.2d 36, 402 N.Y.S.2d 171 (1978).]

The mere separation of the stepparent and natural parent, or the commencement of a divorce action by the stepparent, does not relieve the stepparent of the obligation of support created by Family Court Act, Section 415. [Buscaglia v. Tutko, 86 A.D.2d 974, 448 N.Y.S.2d 337 (1982).]

The cases cited by the respondent have no bearing on the effect of Family Court Act, Section 415. Muller v. Muller, 116 Misc.2d 660, 456 N.Y.S.2d 918 (1982) only states that the effective date for evaluation of the marital property (emphasis supplied) is the commencement of the cause of action. Based on the equitable distribution law, a date is set for determining the marital property; however, no one would argue that the parties are effectively divorced at the commencement of the action. Only upon the granting of the judgment of divorce are the parties divorced, and only then is a stepparent's liability relieved. [Buscaglia v. Tutko, supra.] As petitioner states, the mere commencement of an action for divorce cannot terminate a stepparent's obligation to support. To hold otherwise would allow a stepparent desirous of extinguishing a support obligation to do so merely by serving a summons and complaint upon the natural parent. The divorce action need not be pursued, and yet the stepparent would effectively have circumvented his statutory obligation and have frustrated legislative intent. It is unconscionable that a stepparent be allowed to...