Roe v. Roe

• Decision Date: 28 September 1970
• Citation: 65 Misc.2d 335,316 N.Y.S.2d 94
• Parties: In the Matter of the Paternity Petition of Richard ROE, * Petitioner, v. Mary ROE, Respondent. Family Court, City of New York, Kings County
• Court: New York Family Court

Page 94

316 N.Y.S.2d 94

65 Misc.2d 335

In the Matter of the Paternity Petition of Richard ROE,^* Petitioner, v. Mary ROE, Respondent Family Court, City of New York, Kings County.

Sept. 28, 1970.

[65 Misc.2d 336] Jordon H. Rosenberg, Brooklyn, for petitioner.

Charles Schinitsky, Brooklyn, by David Waldman, Brooklyn, Law Guardian on behalf of the child.

DECISION

LEO GLASSER, Judge.

In a proceeding commenced by a putative father to obtain a declaration of paternity and an order of filiation, the court, on its own motion questioned the petitioner's standing to originate the proceeding. The respondent-mother is not represented by an attorney. The court designated a law guardian on behalf of the child to assist the court in resolving the question of standing insofar as the resolution of that question might also affect the interests of the child. F.C.A. Section 249.

Reducing the facts to their simplest terms, the respondent-mother was married to one other than the petitioner at the time she gave birth to the child. She thereafter divorced her then husband and married this petitioner who alleges that he is the father of that child. For the reasons hereafter advanced the court concludes that this petitioner does not have standing to originate this proceeding and the petition is, therefore, dismissed. In so deciding, the court is conscious of the conflict created between this decision and the decision in Matter of Crane v. Battle, 62 Misc.2d 137, 307 N.Y.S.2d 355 (Fam.Ct.N.Y.Co.1970).

The jurisdiction of the Family Court of the State of New York is a limited one. N.Y.Const. Art. 6, Section 13. That section provides:

'b. The family court shall have jurisdiction over the following classes of actions and proceedings which shall be originated in such family court In the manner provided by law:

* * * (5) the establishment of paternity * * *' (emphasis added).

The 'manner provided by law' for the establishment of paternity is found in Article 5 of the Family Court Act. The specific provision of that Article directly related to the issue at hand reads as follows:

' § 522. Persons who may originate proceedings.

Proceedings to establish the paternity of the child and to compel support under this article may be commenced by the mother, whether a minor or not, by the child's guardian or other person standing in a parental relation or being the next of kin of the child, or by an authorized representative of an incorporated society doing charitable or philanthropic work, or if the mother or child is or is likely to become a public charge on a county, city or town, by a public welfare official of the county, city or town where the mother resides or the child is found.'

Clearly, the 'manner provided by law' for the establishment of paternity does not permit the putative father to originate the proceeding. ¹ Paltani v. Creel, 169 Neb. 591, 100 N.W.2d 736 (1960). The dismissal of the petition might well rest here were it not for Matter of Crane v. Battle, Supra, which can not be ignored and which deserves comment. The bases of that decision were:

I. 'Clearly the Family Court fulfills its purpose when it declares a person to be the father of a child, whether such person be the petitioner or the respondent, thereby casting upon such person all the obligations of a father, legal and moral, to his child.' Matter of Crane v. Battle, 6 Misc.2d 137, 139, 307 N.Y.S.2d 355, 357.

That observation is predicated upon the comment following Family Court Act Section 511 by the Joint Legislative Committee on Court Reorganization. ²

The progenitor of virtually all paternity statutes dates back to the Elizabethan Poor Law of 1576. 18 Eliz. I.C.3. The chief purpose of that ancient statute was not the protection of the child but the indemnification of the parish for the expense of supporting the child. Clark, The Law of Domestic Relations, 162; People ex rel. Smith v. McFarlane, 50 App.Div. 95, 63 N.Y.S. 622 (4th Dept. 1900). The entire scheme of the existing Article 5 of the Family Court Act is still instinct with the same objective. Although Section 511 provides that the Family Court which makes a finding of paternity may '* * * determine custody, as set forth in this article' it is interesting to note that no further reference to custody is made in that Article. Nor does that phrase add anything now to the law. A putative father was permitted, long before the enactment of the Family Court Act, to institute a habeas corpus proceeding for the custody of a child born out of wedlock. People ex rel. Lewisohn v. Spear, 174 Misc. 178, 20 N.Y.S.2d 249 (Sup. Ct. N.Y. Co. 1940). See also, Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318 (Fam.Ct. Ulster Co. 1967). The last sentence of Section 511, viz; 'On its own motion, the court may at any time in the proceedings also direct the filing of a neglect petition in accord with the provisions of article three of this act,' ³ does not furnish protection to the child which was otherwise absent. F.C.A. Section 1032 provides that a neglect proceeding may be originated by '(d) any person having knowledge or information of a nature which convinces him that a child is abused or neglected' or '(e) by a person on the court's direction.' The protection and care of 'an innocent child of an illicit relation' could be effectively furthered by a concerned putative father much more directly by the institution by him of a habeas corpus proceeding or a neglect proceeding. As to the 'moral obligation' of a father to his child suffice it to say that Article 5 of the Family Court Act makes no provision for casting moral obligations upon a parent assuming it were possible to legislate morality or moral obligations, judically or otherwise.

II. 'Moreover it would be unconstitutional to deprive a petitioner of access to the laws and his only remedy, solely because he is a male.' Matter of Crane v. Battle, 62 Misc.2d 137, 139, 307 N.Y.S.2d 355, 357.

The petitioner is not deprived of access to the laws and his remedy under Article 5 of the Family Court Act is not his only remedy. That the petitioner is not restricted to the family court, notwithstanding the language of F.C.A. Section 511 is now plain, Kagen v. Kagen, 21 N.Y.2d 532, 289 N.Y.S.2d 195, 236 N.E.2d 475 (1968); Matter of Seitz v. Drogheo, 21 N.Y.2d 181, 287 N.Y.S.2d 29, 234 N.E.2d 209 (1967). In addition, an action for a declaratory judgment has been regarded as appropriate to determine the status of a child, including legitimacy, parentage and the like. Matter of Melis v. Dept. of Health, 260 App.Div. 772, 24 N.Y.S.2d 51 (1st Dept. 1940): C.P.L.R. 3001. The action for a declaratory judgment in a case such as this would be the more desirable remedy since in that action, the child as well as the first husband of the respondent should be made parties. C.P.L.R. 1001(a); Matter of Melis v. Dept. of Health, supra. See also D.R.L. Section 24. In a paternity proceeding, neither the child nor the husband of the mother are necessary parties. 'The order made in such a proceeding does not constitute an adjudication binding on them or persons claiming through or under them that the child is or is not the legitimate offspring of married parents. An order adjudging that some person other than the mother's husband is the father of the child and ordering him to provide for its support is, it is plain, not a binding adjudication of illegitimacy. It does not establish the status of the child nor would it be competent evidence to establish illegitimacy in any proceeding to which others are parties.' Commissioner of Public Welfare, etc. v. Koehler, 284 N.Y. 260, 267, 30 N.E.2d 587, (1940). The implications of the Koehler case as regards E.P.T.L. 4--1.2 are interesting to contemplate. If, for example, this putative father were permitted to originate this proceeding and an order of filiation were made which was not binding on the child or the first husband of the mother, could the child thereafter claim the right of inheritance from both and conversely, could the petitioner and the first husband of the respondent both claim the right to inherit from the child?

A state may establish such courts as it sees fit and prescribe their respective jurisdictions and the equal protection of the laws is not violated by such diversity in jurisdiction. Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989 (1879). Although the equal protection clause requires laws of like application to all similarly situated, the legislature is allowed wide discretion in the selection of classes. Barrett v. Indiana, 229 U.S. 26, 33 S.Ct. 692, 57 L.Ed. 1050 (1913). Classification will not render a police statute unconstitutional, so long as it has a reasonable basis. Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (1910). 'In every case, the basic question is not whether the attacked law discriminates, not whether it is unequal, not whether it will operate harshly or unjustly against some litigants, but whether the classification is based upon a difference which has a reasonable relation to the objective sought to be accomplished.' Shielcrawt v. Moffett, Sup., 49 N.Y.S.2d 64, 76, aff'd, 268 App.Div. 352, 51 N.Y.S.2d 188, rev'd on other grounds, 294 N.Y. 180, 61 N.E.2d 435, motion denied, 294 N.Y. 840, 62 N.E.2d 392. If, the objectives sought to be accomplished by our paternity statutes is the indemnification of the public fisc and the support of the child, as appears to be the case, then I would be loathe to decide that the legislative classification as expressed in Article 5 of the Family Court Act is clearly unreasonable and has no rational basis, but would rest instead upon the presumption of constitutionality. See McKinney's Statutes Section 150.

III. 'Although Family Court Act, Section 523 states that 'Proceedings are commenced by the filing of a verified petition, alleging that the person named as respondent is the father of the child * * *' such provision should be liberally construed to...