Gordon v. Cole

• Decision Date: 17 October 1967
• Citation: 54 Misc.2d 967,283 N.Y.S.2d 787
• Parties: In the Matter of the Paternity Petition of Mary GORDON, * Petitioner, v. Jerry COLE, * Respondent.
• Court: New York City Court

Page 787

283 N.Y.S.2d 787

54 Misc.2d 967

In the Matter of the Paternity Petition of Mary GORDON,^* Petitioner, v. Jerry COLE, * Respondent.

Family Court, City of New York, New York County.

Oct. 17, 1967.

Lois P. Sheinfeld, New York City, for petitioner.

JACOB T. ZUKERMAN, Judge:

This is a petition to establish the paternity of a child born out of wedlock in which the putative father died before the child was born. The facts are these. The mother, now 18, and the putative father, at the time of his death, aged 17, had sexual relations from April 1966 through April 1967. The testimony of the petitioner, the respondent's father and mother, his two sisters, his brothers' wife and his closest friend all indicated that the couple had planned to be married as soon as the young man was graduated from high school at the end of June, 1967; that the boy's parents had set up an apartment for them in the basement of their own house; that the couple had discussed the name of the child in their presence and that the putative father had orally on more than one occasion acknowledged the still unborn child to be his. On June 3, 1967, the putative father was murdered. The child was born on June 27, 1967. The child, allegedly, was given the name which had been selected by the deceased putative father.

The petition was filed for the purpose of changing the name of the child to that of his alleged putative father.

The question is raised whether an order of filiation may be made against a deceased alleged putative father. There is little question in my mind about the social value of making such a finding. Here we have a petition joined in by all of the members of the deceased's family, who wish to accept the child as part of their family.

A filiation proceeding under modern law is a civil action, designed to protect the welfare of the child and the statutes governing that proceeding should be liberally construed. Schaschlo v. Taishoff, 2 N.Y.2d 408, 161 N.Y.S.2d 48, 141 N.E.2d 562 (1957). At common law an illegitimate child was Filius nullius, the child of no one; the community, not its natural parents, was liable for its support. Duerr v. Wittman, 5 A.D.2d 326, 171 N.Y.S.2d 444 (1958). It is now agreed that '(t)he law does not and should not look with favor upon suspending the question of parentage of a child in limbo.' ABC v. XYZ, 50 Misc.2d 792, 796--797, 271 N.Y.S.2d 781, 785 (Fam.Ct.1966).

The legislature has impliedly recognized the power of the Family Court to grant an order of filiation after the death of the putative father. In 1952, the Surrogates Court had enforced an out-of-court acknowledgment of paternity and a support agreement against the estate of a deceased father. In re Cirillo's Estate, 114 N.Y.S.2d 799 (Surr.Ct. 1952). Thereafter the legislature did provide in § 513, Family Court Act, that support proceedings may be brought after the death of a father only if a court support order or judicially approved settlement had been made prior to the father's death. That portion of the Cirillo decision relating to the establishment of paternity was left standing.

The right of a child to establish his paternity and claim his family allowance against the estate of his deceased father has been recognized in California Woodward v. Newton, 230 Cal.App.2d 113, 118, 40 Cal.Rptr. 781, 12...