Kordek v. Wood
| Decision Date | 31 March 1981 |
| Citation | 437 N.Y.S.2d 631,108 Misc.2d 434 |
| Parties | . Kathleen WOOD, Respondent. Family Court, Onondaga County |
| Court | New York Family Court |
No final, appealable order of disposition pursuant to Article 5 of the Family Court Act may be entered absent the entry of an order of support. Nancy V. v. Raymond E. C., 75 A.D.2d 599, 426 N.Y.S.2d 805 (2d Dept.1980); Matter of Joan S., 71 A.D.2d 606, 418 N.Y.S.2d 126 (2d Dept.1979); Matter of Susan W. v. Amhad Q., 65 A.D.2d 594, 409 N.Y.S.2d 262 (2d Dept.1978). When a child born out of wedlock is adequately supported by its mother and there is no likelihood that the child may become a public charge, no relief is available to a putative father in a paternity action in family court, since a paternity proceeding is brought to insure the support of a child born out of wedlock. Commissioner of Public Welfare v. Koehler, 284 N.Y. 260, 30 N.E.2d 587 (1940); Matter of J., 50 A.D.2d 890, 377 N.Y.S.2d 530 (2d Dept.1975), and no status giving rise to the rights of fatherhood is conferred by an Article 5 proceeding. Melis v. Department of Health, 260 A.D. 772, 24 N.Y.S.2d 51 (1st Dept.1940); contra: Matter of John J. S. v. Theresa L., 99 Misc.2d 578, 416 N.Y.S.2d 1000 (Fam.Ct.Bronx Co.1979). The status of a child may be determined by bringing an action for a declaratory judgment in Supreme Court where all persons interested or likely to be affected by the determination may be joined or impleaded as parties. Matter of Salvatore S. v. Anthony S., 58 A.D.2d 867, 396 N.Y.S.2d 872 (2d Dept.1977); Moy Mee Soo v. Leong Yook Yick, 21 A.D.2d 45, 248 N.Y.S.2d 61 (1st Dept.1964); Morecroft v. Taylor, 225 A.D. 562, 234 N.Y.S. 2 (1st Dept.1929).
On May 2, 1979 the petitioner originated a proceeding in this court pursuant to Article 5 of the Family Court Act, under the authority of section 522 of that act which authorizes the father of a child born out of wedlock to commence such action. The petition sought the entry of a declaration of paternity of a child born out of wedlock to the respondent on February 3, 1979. Further, the petition sought an order of support and such further relief as might be appropriate under the circumstances. At the same time the petitioner commenced a proceeding pursuant to section 651(b) of the Family Court Act seeking the award of the custody of the same child.
The court conducted a bifurcated hearing. It proceeded initially with the issue of paternity. After a hearing on September 5 and 6, 1979, the court found the petitioner to be the father of the child and adjourned the proceedings until October 3, 1979 for hearing on the remaining issues of visitation, custody and support.
After a hearing on October 3, 1979, the court made a decision with regard to the issue of visitation pursuant to section 549(a) of the Family Court Act and awarded specified visitation to the petitioner. In the same decision the court dismissed the petition seeking the award of the custody of the child to the petitioner on the grounds that the petitioner had failed to prove it was in the best interests of the child that custody be awarded to him. The court made no determination of the issue of support for the reason that no evidence was presented by either party directed to the issue.
As a result of the court's decision on October 3, 1979 it signed an order of filiation and visitation on November 2, 1979, which order was filed and entered with the Clerk of this court on November 7, 1979. The order did not refer to the issue of support.
The oversight with regard to the lack of a determination on the support issue was not discovered by the court until a petition was filed on June 23, 1980 by the original petitioner seeking a modification of the previous order of visitation. The court, on its own motion, on October 15, 1980 had counsel appear and advised them of the lack of a final order and at that time set a trial date to determine the issue of support.
A hearing was conducted on December 23, 1980 and it is found that the child is presently neither in need of support from the petitioner nor is the child likely to become a public charge. Those findings are based upon the fact that the original respondent is currently employed by the federal government in a very secure position. She is a grade GS-7 and earns between $13,000 and $14,000 per year. It is further found that the respondent is presently married and her husband earns a combined income of approximately $12,000 per year as a school teacher in a private school and as a pastor of a church. (See section 415 of the Family Court Act for the liability of a stepfather to support a stepchild who is the beneficiary of public assistance or likely to become such beneficiary.)
The court further finds that the petitioner and his present family, which consist of a wife and infant daughter, are presently receiving public assistance.
The court now having found that the child is not now nor is it likely to become a public charge, dismisses the petition seeking the entry of a declaration of paternity, abrogates its order of filiation and vacates the order of visitation based upon the law controlling such findings.
Having made this determination, it is unnecessary for the court to decide the pending motion and petition of the original respondent and accordingly all pending motions are denied and pending petitions dismissed.
An action to compel support for the child born out of wedlock is purely a statutory proceeding unknown at common law. People ex rel. Lawton v. Snell, 216 N.Y. 527, 111 N.E. 50 (1916). At one time neither the mother nor the father of a child born out of wedlock was liable for the child's support and such a child was cast upon the charity of the community. S. B. Schatkin, Disputed Paternity Proceedings, Vol. I § 1.08 (4th Ed.) In 1576 the English Poor Laws were enacted, Stat. 18, Eliz. I, Chapt. 3, to shift the burden of support from the public to the parents of the child. "Indemnification for the public was the principal purpose of this and subsequent similar statutes." Schatkin, supra (Emphasis in the original).
In New York both parents of a child born out of wedlock are statutorily liable "for the necessary support and education of their child." Fam.Ct.Act § 513 . The mother of the child born out of wedlock, then, has long had an obligation to support her child. It was to "resolve problems of support" that the mother of a child born out of wedlock and certain authorized agencies, such as the Department of Social Services, were given the statutory right to seek to have an order of filiation and support made for the child born out of wedlock who was in need of support and likely to become a public charge. Report of Joint Legislative Commission on Court Reorganization, No. 2 Family Court Act, 1962 Laws of New York 3446 (McKinney's); Fam.Ct. Act § 517; Alvin B. v. Denise C., 85 Misc.2d 413, 380 N.Y.S.2d 601 (Fam.Ct. Kings Co., 1976) (petition by putative father dismissed); Matter of Roe, 65 Misc.2d 335, 316 N.Y.S.2d 94 (Fam.Ct. Kings Co., 1970) (in which the putative father of a child born out of wedlock was held to lack the standing necessary to initiate a paternity proceeding). This statutory scheme manifested the assumption that the purpose of a paternity proceeding was to insure the support of the child born out of wedlock, Commissioner of Public Welfare v. Koehler, supra, and thus, promote the welfare of the child. Schaschlo v. Taishoff, 2 N.Y.2d 408, 161 N.Y.S.2d 48, 141 N.E.2d 562 (1957).
Paternity proceedings in New York State were originally criminal proceedings. Rheel v. Hicks, 25 N.Y. 289 (1862); People ex rel. Prior v. Prior, 112 Misc. 208, 182 N.Y.S. 577 (Sup.Ct., Spec. Term 1920). As late as 1962 exclusive jurisdiction over proceedings to establish paternity and provide support for natural children in the City of New York was vested in the criminal court. Report of the Joint Legislative Commission on Court Reorganization No. 2 Family Court Act § 511. This allocation of jurisdiction is consistent with the basic purpose of a paternity proceeding to insure support for the child born out of wedlock. It was long believed that the father of a child born out of wedlock had little interest in...
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... ... 7 Contra to this statutory authority is Matter of Kordek v. Wood, 108 Misc.2d 434, 437 N.Y.S.2d 631 wherein the Family Court of Onondaga County held that "when a child born out of wedlock is adequately ... ...
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...that she will become a public charge. In support of her application she relies heavily upon the decision in Matter of Kordek v. Wood, 108 Misc.2d 434, 437 N.Y.S.2d 631. This court respectfully, but totally, rejects the opinion and conclusions of Judge McLaughlin in that The court instead co......
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Kordek v. Wood
...held that because the child was not in need of support it was without jurisdiction to determine paternity (see Matter of Kordek v. Wood, 108 Misc.2d 434, 437 N.Y.S.2d 631). It, therefore, dismissed the original petition which sought entry of a declaration of paternity, abrogated its order o......