Nadine O. v. Irene B.
| Decision Date | 04 October 1996 |
| Citation | 648 N.Y.S.2d 530,170 Misc.2d 52 |
| Parties | In the Matter of NADINE O., Petitioner, v. IRENE B. et al., Respondents. |
| Court | New York Family Court |
Rita Merino Hager, Niagara Falls, for petitioner.
A. Angelo DiMillo, Lockport, for respondents.
David Blackley, Lockport, Law Guardian.
In this proceeding, petitioner seeks to establish that Scott B., who died on January 5, 1991, is the father of Kelsey O., born out of wedlock to petitioner on May 10, 1991.
A paternity petition was filed by Ms. O. in May, 1993, naming as respondent "The Estate of Scott W.B." Since no estate proceedings had been filed, there was no Executor or Administrator on whom service could be made and the petition was dismissed without prejudice in July, 1993.
A new petition was filed on October 26, 1995. Irene B. (mother), Bruce B. (father) and Bruce B., Jr. (brother), as decedent's next of kin, were named respondents. At the same time, petitioner sought an order directing respondents to submit to paternity parentage testing. Respondent filed a cross-motion requesting an order of dismissal.
It was the decision of this Court, inter alia, that respondents were proper parties to this proceeding, since no Letters of Administration had been issued, and they were in the best position to contest petitioner's application. Matter of Anne R. v. Estate of Francis C., 167 Misc.2d 343, 634 N.Y.S.2d 339 (Family Court, Queens County, 1995); Matter of Henry v. Rodd, 95 Misc.2d 996, 408 N.Y.S.2d 745 (Family Court, Queens County, 1978). They were not, however, required to submit to paternity parentage testing. In addition to the reasons given on the record in court on February 9, 1996, petitioner's request for a blood test was premature at that stage of the proceeding. Petitioner's request was denied, and respondents' cross-motion to dismiss was likewise denied.
A Law Guardian was appointed to represent the interests of the child, and a hearing was thereafter conducted on May 20, 21 and 23, 1996.
Petitioner brings this proceeding pursuant to Family Court Act (FCA) § 519, which provides as follows:
§ 519. Effect of death, absence or mental illness of putative father
If, at any time before or after a petition if [sic] filed, the putative father dies, or becomes mentally ill or cannot be found within the state, neither the proceeding nor the right to commence the proceeding shall necessarily abate but may be commenced or continued by any of the persons authorized by this article to commence a paternity proceeding where:
(a) the putative father was the petitioner in the paternity proceeding; or,
(b) the putative father acknowledged paternity of the child in open court;
(d) the putative father has openly and notoriously acknowledged the child as his own.
This provision overrules the common law doctrine that a purely personal action abates when one of the parties dies. The statute was enacted to prevent false and opportunistic claims from being made against the putative father's estate while permitting legitimate claims to proceed. The statute should not be given a broad reading to prevent abatement of a paternity proceeding against a deceased putative father where none of the statute's four conditions are met. Commissioner v. William C. 147 Misc.2d 974, 559 N.Y.S.2d 88 (Family Court, New York County, 1990).
Petitioner relies on FCA § 519(d), and alleges that decedent "openly and notoriously acknowledged the child as his own" prior to his death on January 5, 1991.
Before determining the question of paternity, the Court must decide whether petitioner has met her burden of proving open and notorious acknowledgment of the child by Scott B. so that she is permitted to maintain this proceeding despite the death of the putative father. FCA § 519(d); Matter of Anne R. v. Estate of Francis C., supra, at p. 345, 634 N.Y.S.2d 339; North v. Estate of Brooks, Family Court, Ulster County, Nov. 19, 1993, Family Law Review, Vol. 27, No. 3 (Sept.1995).
It is well established that the ultimate issue of paternity must be demonstrated by clear and convincing proof. Matter of Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137, 141-142, 463 N.Y.S.2d 761, 450 N.E.2d 681 (1983).
It is less clear, however, what standard of proof applies to the threshold issue of open and notorious acknowledgment. There is authority that petitioner is required to demonstrate this by a fair preponderance of the evidence. Matter of Anne R. v. Estate of Francis C., supra, at p. 346, 634 N.Y.S.2d 339. Matter of Anne R. appears to be the only case to explicitly address this matter. The Court in Matter of Anne R. enunciates the "fair preponderance" standard as a given, without discussion or recitation of any authority therefor. For reasons hereinafter set forth, I must respectfully disagree with this determination.
Section 517 of the Family Court Act provides as follows:
§ 517. Time for instituting proceedings.
Proceedings to establish the paternity of a child may be instituted during the pregnancy of the mother or after the birth of the child, but shall not be brought after the child reaches the age of twenty-one years, unless paternity has been acknowledged by the father in writing or by furnishing support.
The acknowledgment required by FCA § 517 must be "... a clear acknowledgment about which there is no doubt or equivocation." Schuerf v. Fowler, 2 A.D.2d 541, 542, 156 N.Y.S.2d 859 (1st Dept.1956), app. dism'd 3 N.Y.2d 987, 169 N.Y.S.2d 749, 147 N.E.2d 253. "... D. v. D., 69 Misc.2d 689, 690, 330 N.Y.S.2d 907 (Family Court, New York County, 1972).
To avoid the statute of limitations, it must be established by clear and convincing evidence that the father has acknowledged paternity. Vicki B. v. David H., 57 N.Y.2d 427, 456 N.Y.S.2d 737, 442 N.E.2d 1248 (1982). The written acknowledgment required by FCA § 517 need not be in any precise words, "but it should be clear and definite on the face of the writing or in its context." Schuerf v. Fowler, supra, at p. 542, 156 N.Y.S.2d 859.
Examples of such acknowledgments include a letter from a putative father to the mother which stated "I love you and our baby," Anonymous v. Anonymous, 25 A.D.2d 350, 269 N.Y.S.2d 653 (2d Dept.1966), aff'd 19 N.Y.2d 840, 280 N.Y.S.2d 405, 227 N.E.2d 318, remittur. amd. 20 N.Y.2d 742, 283 N.Y.S.2d 105, 229 N.E.2d 701; a hospital record of a consent to perform an operation on a child, signed by the putative father as "nearest relative," Green v. Blue, 28 A.D.2d Sections 517 and 519 of the Family Court Act are in pari materia and must be construed together. McKinney's Consolidated Laws of New York, Book 1, Statutes, § 221. Since FCA § 517 requires the father's written acknowledgment to be proven by clear and convincing proof, a like standard of proof should be applied to the open and notorious acknowledgment required by FCA § 519(d).
628, 280 N.Y.S.2d 767 (3d Dept.1967); the putative father's signature on the child's report cards in the spaces indicated for the parent's signature along with a letter to the petitioner's sister stating that he loved the petitioner and his babies very much and that he wanted to see the child in question. D. v. D., supra.
At the hearing, proof was adduced on the issue of open and notorious acknowledgment as well as the ultimate issue of paternity. On...
To continue reading
Request your trial