Pierce v. Yerkovich

• Decision Date: 04 December 1974
• Parties: Applicaion of Franklin PIERCE, Petitioner, for a Petition for an Order to Determine the Custody of Joanna Pierce and the rights of Gloria J. YERKOVICH, Respondent.
• Court: New York Family Court

Page 403

363 N.Y.S.2d 403

80 Misc.2d 613

Applicaion of Franklin PIERCE, Petitioner, for a Petition

for an Order to Determine the Custody of Joanna

Pierce and the rights of Gloria J.

YERKOVICH, Respondent.

Family Court, Ulster County.

Dec. 4, 1974.

David Cohen, for petitioner.

Richard Overbagh, Kingston, for respondent.

HUGH R. ELWYN, Judge:

The petitioner, Franklin Pierce, the acknowledged father of an illegitimate child seeks to have defined and enforced his asserted right of visitation with his five year old daughter, which right the mother has, for the past year and a half, adamantly refused to recognize.

Custody of the child is not at issue. What is at issue is whether through de-emphasis of parental rights (see Finlay v. Finlay, 240 N.Y. 429, 433--434, 148 N.E. 624, 626--627) and strict adherence to the 'best interests of the child' criterion as conceived and defined by the mother alone, the court should permit the mother as custodial parent the prerogative of making the determination as to when and under what circumstances, if at all, the child may see her father, as is urged upon the court by her expert witness, or whether, the court should exercise its authority as Parens patriae to temper the 'best interests of the child' maxim with a recognition that the father of a child, even though illegitimate, has a right to association with his child which right may not only not be ignored (Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042; People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 104 N.E.2d 895; People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 113 N.E.2d 801; Matter of Jewish Child Care Assn. (Sanders), 5 N.Y.2d 222, 183 N.Y.S.2d 65, 156 N.E.2d 700; People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 222 N.Y.S.2d 945, 179 N.E.2d 200; Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787; Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196, 324 N.Y.S.2d 937, 274 N.E.2d 431), but which is cognizable and, indeed must be recognized by the courts (Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551).

Since the decision of the United States Supreme Court in Stanley v. Illinois, supra holding that the interest of the father of an illegitimate child in retaining custody of his child is cognizable and substantial, and that to deprive him of the child's custody without a hearing as to his fitness as a parent was a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment, the rights of the unwed father have come under renewed scrutiny by the courts. The result has been to broaden and liberalize the unwed father's rights through either ignoring and judicially amending or even holding unconstitutional statutes which deny or restrict his rights. For instance, in spite of the unequivocal affirmation by the Appellate Division (2nd Dept.) in 'Doe' v. 'Roe', 37 A.D.2d 433, 436, 326 N.Y.S.2d 421, 424, that 'Under New York law the putative father has no parental rights with respect to a child born out of wedlock', the Supreme Court, Dutchess County in 'Doe' v. Department of Social Services, 71 Misc.2d 666, 671, 337 N.Y.S.2d 102, 107 has held that 'in view of Stanley, there must now be read into that statute, (Domestic Relations Law § 111, Subd. 3 which provides that only the mother's consent is necessary for the adoption of a child born out of wedlock) and it must be so construed, that the mother's exclusive or sole consent suffices only where there has been no formal or unequivocal acknowledgment or recognition of paternity by the father.' The putative father was held to have a 'cognizable and substantial interest' in the matter of the proposed adoption of his child. ¹ Certainly, in the light of Stanley v. Illinois, supra there can no longer be any question but that the father of an out of wedlock child has standing to be heard on the issue of visitation rights (Forestiere v. Doyle, 30 Conn.Sup. 284, 310 A.2d 607 (1973)).

The Courts of this State have undoubted authority to grant visitation rights to the father of an illegitimate child (People ex rel. 'Francois' v. 'Ivanova', 14 A.D.2d 317, 221 N.Y.S.2d 75; Anonymous v. Anonymous, 34 A.D.2d 942, 312 N.Y.S.2d 348; Family Court Act, §§ 511, 549) and, in a proper case, have frequently recognized the right of a father to visit his illegitimate child (See, e.g. Matter of 'Z' v. 'A', 36 A.D.2d 995, 320 N.Y.S.2d 997 (remitted to Family Court for consideration of visitation rights); Anonymous v. Anonymous, 34 A.D.2d 942, 312 N.Y.S.2d 348 (remanded for additional evidence); People ex rel. 'Francois' v. 'Ivanova', 14 A.D.2d 317, 221 N.Y.S.2d 75 (granted); Matter of Anonymous v. Anonymous, 56 Misc.2d 711, 289 N.Y.S.2d 792 (granted); Matter of Anonymous 12 Misc.2d 211, 172 N.Y.S.2d 186 (granted); Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318 (granted if mother consents); cf. E.R. v. D.T., 77 Misc.2d 242, 353 N.Y.S.2d 612 (right of father to visit in appropriate case recognized and approved, but because of special circumstances denied). ²

The child Joanna, who is now five years of age lives with her mother and stepfather at Lake Katrine, New York. She was born on December 29, 1968 in North Miami, Florida and lived with both parents until she was approximately two and three quarters years old when her unmarried parents separated. During this period of time the petitioner had almost daily contact with his daughter, lavished much time, attention and affection upon her and she came to know and love him as her father.

The parties' relationship began when the petitioner hired the respondent as his secretary. This relationship gave way to a more intimate relationship when, after about six months, the respondent moved into the petitioner's house in late February of 1968. They continued to live together without marriage in a husband and wife relationship until, one day in September of 1971, after a violent argument, the respondent decided she could no longer tolerate the situation and moved out, taking the child with her.

The respondent claims that when she moved in with the petitioner, she did not know that he was married and did not learn of that fact until three or four months after Joanna was conceived. She also claims that at the time she moved in with him the petitioner asked her to marry him, that they discussed having a child and that she became pregnant assuming that they would soon marry. After the conception and birth of the child and up until the time of the separation on September 27th, 1971 the respondent continued to press the issue of marriage, but he refused to marry except upon his terms. Whenever the subject of marriage came up, no decision could ever be reached, for the respondent wanted a marriage with no strings attached and the petitioner insisted that there should first be a prenuptial agreement. As a matter of fact, however, during all of this time the petitioner was not legally free to marry, for it was not until April 4, 1972 that he obtained a divorce from his wife in the State of Florida.

Shortly after the respondent left the petitioner's home in Florida in September 1971 she moved to Charlottesville, Virginia. The petitioner did not see the child again until January 1972 when the respondent and the child visited with the petitioner for several weeks at his home in Florida. Twice during the spring of 1972, once in March and again in June the petitioner went to Charlottesville where, with the mother's permission and encouragement, he spent several weeks visiting his daughter. The mother and child stayed at the petitioner's home in Florida for two weeks in April 1972 and, with the mother's permission, the child spent a portion of July and all of August with her father at his Florida home. Shortly after the child's return to Charlottesville in September 1972, there appears to have been a complete reversal in the mother's attitude toward further visits with the father, for although he made repeated efforts to communicate with the child, he was not permitted to see his daughter again until April of 1973 when he again went to Charlottesville, where for the next month he had a limited contact with his daughter. After May 31st the respondent permitted the father no further contact with his daughter and he did not again see the child until October 1973 when, through the intervention of the court, he was permitted to see the child at the mother's apartment at Lake Katrine, New York. From May to October he had made numerous attempts through correspondence and by telephone to reestablish some contact with his daughter, but all his efforts were met by a complete denial by the mother, for the ostensible reason 'that no formal agreement had been reached and until such formal agreement could be reached she didn't think it was a good idea to see the child.'

In the meantime, while the petitioner was continuing his diligent efforts to maintain contact with the child, he also renewed his efforts to effect a reconciliation with the respondent and to make provision for the child. On November 18, 1971, about two months after their split up he wrote to the respondent asking that he be permitted to have legal custody of the child with unlimited rights of visitation for her. The offer was declined. On January 6, 1972 the petitioner renewed in writing his long standing offer of marriage so as to legitimatize the child but again, as always, coupled with a condition that she enter into a pre-nuptial agreement waiving any interest in his estate. This offer was likewise declined.

Finally, when after all efforts to persuade the respondent to marry upon his terms had failed and every effort to maintain contact with his daughter had met with denial, the petitioner in the Spring of 1973 commenced a proceeding in the Juvenile and Domestic Relations Court in Charlottesville, Virginia to obtain custody and/or visitation rights with his daughter. After lengthy hearings a...