Michelle W. v. Forrest James P.

Citation637 N.Y.S.2d 538,218 A.D.2d 175
PartiesMatter of MICHELLE W., Respondent, v. FORREST JAMES P., Respondent. Brittany W., Appellant.
Decision Date02 February 1996
CourtNew York Supreme Court Appellate Division

Appeal from Order of Cattaraugus County Family Court; Himelein, Judge--Custody.

Robert J. Simon, Law Guardian, Olean, for Appellant.

Fern S. Adelstein, Olean, for Respondent--Michelle W.

Robert E. Mountain, Jr., Olean, for Respondent--Forrest James P.

Before LAWTON, J.P., and FALLON, CALLAHAN, BALIO and BOEHM, JJ.

LAWTON, Justice Presiding.

This case, one of first impression before this Court, concerns the validity of an agreement between the parents of a child born out-of-wedlock that was approved by Family Court and incorporated into its order. The agreement purports to release the father, whose paternity was judicially determined, from responsibility to support the child once a specified amount of support has been paid in full, in exchange for his relinquishment of all paternal rights to the child for the remainder of her life. For the reasons that follow, we conclude that the agreement is not authorized by statute and is void as against public policy.

On May 27, 1994, petitioner filed a petition seeking custody of the parties' infant daughter. An order of filiation had been entered determining that respondent is the father of the child. On July 1, 1994, respondent appeared in court, a Law Guardian was appointed for the child and the matter was adjourned. The parties thereafter entered into an agreement wherein petitioner agreed to "accept the sum of $4,250.00 @ $25.00 per week = $1,300.00/year for 3 years * * * + 350.00/Medical Bills" as and for respondent's support of the child. Respondent agreed to pay the support in the amount of $100 per month until the balance was paid in full. The agreement further provides that respondent relinquishes all of his parental rights to the child for the rest of her life; that petitioner accepts all parental rights of the child; and that petitioner will take no further action against respondent for "child support, medical bills, etc." The court approved the agreement over the objection of the Law Guardian. The agreement was incorporated but not merged in the subsequent order dismissing the custody petition. The present appeal by the Law Guardian ensued.

Family Court Act § 516(a) permits a mother and putative father of a child to enter into a binding agreement for support of their out-of-wedlock child provided that the court determines that adequate provisions have been made for the child (see, Bacon v. Bacon, 46 N.Y.2d 477, 414 N.Y.S.2d 307, 386 N.E.2d 1327). That section does not apply here because respondent's paternity has been judicially determined. Moreover, the court erred in approving the agreement without first providing the public welfare official with notice and an opportunity to be heard (see, Family Ct.Act § 516[b]; Matter of Arlene C. v. Stephen B., 37 A.D.2d 567, 323 N.Y.S.2d 815). In addition, the record fails to disclose that any evidence regarding respondent's finances was provided to the court. Because the court failed to review respondent's finances, it could not approve the agreement pursuant to Family Court Act § 516(a) even if it were applicable.

The agreement also cannot be sustained as a support agreement pursuant to Family Court Act § 413(1)(h). That paragraph permits opting-out agreements that establish an amount of child support that varies from the Child Support Standards Act (Family Ct. Act § 413). Here, the agreement unquestionably varies from the basic child support obligation because respondent is to pay support for only three years. Because of that deviation, section 413(1)(h) requires that the agreement "must specify the amount that [the] basic child support obligation would have been" and the reason or reasons why the parties have agreed upon a different amount. Further, " '[s]uch provision may not be waived by either party or counsel' " (Matter of Burnside v. Somerville, 202 A.D.2d 1064, 1065, 609 N.Y.S.2d 127). This agreement fails completely to satisfy those requirements. Additionally, the order incorporating the agreement fails to set forth the reasons for the court's approval of the deviation, as required by Family Court Act § 413(1)(h) (see, Matter of Riggie v. Riggie, 217 A.D.2d 909, 630 N.Y.S.2d 184; Matter of Burnside v. Somerville, supra, at 1065, 609 N.Y.S.2d 127).

We likewise conclude that the provision in the order and agreement, that petitioner accepts full parental rights to the child and respondent agrees to relinquish all of his parental rights to the child, cannot be upheld. The severing or establishing of parental rights can only be accomplished through statutorily governed proceedings, i.e., adoptions or...

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  • David v. Cruz
    • United States
    • New York Supreme Court Appellate Division
    • 19 d2 Fevereiro d2 2013
    ...[h]; Domestic Relations Law § 240[1–b][h]; Baranek, 54 A.D.3d at 790–791, 864 N.Y.S.2d 94;Matter of Michelle W. v. Forrest James P., 218 A.D.2d 175, 637 N.Y.S.2d 538 [4th Dept. 1996] ). [103 A.D.3d 495]Although the invalidity of a child support provision does not necessarily invalidate the ......

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