Saratoga County Com'r of Public Welfare v. Roberson
| Citation | 220 N.Y.S.2d 377,32 Misc.2d 607 |
| Parties | In the Matter of the Complaint of the SARATOGA COUNTY COMMISSIONER OF PUBLIC WELFARE v. Robert ROBERSON, the alleged father of Kimberly B. Phillips, a child born out of lawful wedlock to Dorothy Elaine Phillips. Children's Court, Saratoga County |
| Decision Date | 20 October 1961 |
| Court | New York Children's Court |
John W. Nichols, County Atty., Saratoga Springs, by Edward T. Sullivan, Asst. County Atty., Mechanicsville, for complainant.
Silverman & Silverman, Schenectady, Thomas F. Fyvie, Jr., Schenectady, of counsel, for respondent.
The trial of the above entitled filiation proceeding was had before me on September 21, 1961.
At the conclusion of the trial, the respondent moved to dismiss the proceeding on the ground that complainant failed to offer any proof that the subject child is or is likely to become a public charge or that the mother of the subject child is dead or under a disability. The respondent contended that the authority for the motion was in Re Bancroft, 1950, 276 App.Div. 485, 96 N.Y.S.2d 109.
The affidavit of the mother, in support of the Commissioner's Complaint, annexed thereto and filed, was verified on May 2, 1961. It contains her sworn statement that 'your deponent has no means or money of her own sufficient to meet the expenses and that she and her child are likely to become public charges on the County of Saratoga.' The complaint herein, executed and verified by Joseph V. Gemmiti, as Saratoga County Commissioner of Public Welfare, on the same date, May 2, 1961, contained a similar allegation.
The proceedings were adjourned from time to time by reason of various motions, such as blood grouping tests (granted), preparation for trial, etc.
The sole object of Article VIII of the Domestic Relations Law is to provide a means for determining who owes duty of support for the illegitimate child. This was the holding in the Bancroft case.
The father is responsible with the mother, jointly and severally, for the support and education of an illegitimate child. Jones v. Jones, 161 Misc. 660, 292 N.Y.S. 221.
The Bancroft case, supra, merely determined that a proceeding to compel a father to support and educate an illegitimate child must be brought by the mother or her personal representative.
Section 122, subdivision 1 of the Domestic Relations Law reads in part as follows:
'A proceeding * * * may be brought by the mother, or her personal representative, or, if the 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.'
In Commissioner of Public Welfare, on Complaint of Connell v. McDonald, 246 App.Div. 831, 284 N.Y.S. 862, the sole question was one of jurisdiction, not applicable to the present case.
In Saratoga County Commissioner of Public Welfare v. A. B., The Alleged Father of a Female Child Born Out of Lawful Wedlock to C. D., 205 Misc. 1004, 131 N.Y.S.2d 634, cited by the respondent, the question pertained to access on the part of the husband and the Court held that the evidence was not sufficient to establish that the child was illegitimate. This case has very little bearing insofar as the present case is concerned.
Two other citations in the memorandum of the respondent: Hogeboom v. Hurlburt, 207 Misc. 997, 141 N.Y.S.2d 691, on the question of sterility and People ex rel. Lawton v. Snell, 216 N.Y. 527, 111 N.E. 50, Ann.Cas. 1917D, 222, have no particular application. The latter case was decided upon the question of commitment and was based upon the former provisions of the Code of Criminal Procedure.
It will be necessary to review the testimony to some extent. Dorothy Elaine Phillips, the mother of the child born out of lawful wedlock, testimfied that the child was born to her on April 12, 1961, in the Memorial Hospital in Albany, New York. She claims to have met Robert Roberson in July of 1960 and that she had intercourse with him shortly after the first week of July 1960 and more or less continuous intercourse with him until the first week in September 1960 at which time she left for school in Albany. She further testified that her menstrual periods continued until February of 1961. However, in November of 1960 her mother accused her of being pregnant. In December of that year, during the Christmas vacation, she was attended by Dr. Grace Maguire Swanner who directed her to have certain tests made at the Saratoga Hospital and that as a result of the said tests the said Dr. Swanner determined that she was pregnant.
Dorothy Phillips returned to school in Albany on September 11, 1960. She stated that during the months of July and August, and at least in the first week in September, she had sexual intercourse with the respondent. She met him at a nightclub where the respondent was working. She was then living in a rooming house at 11 Woodlawn Avenue, Saratoga Springs, New York, separate and apart from her parents. Her testimony is to the effect that the respondent usually came to her room after he got through work at 3:00 a. m. and stayed the rest of the night and that he would sometimes visit her in her room during the day. She was not sure of the date of conception because of the fact her menstrual periods had continued and it was not until December, 1960, that it was finally determined that she was pregnant. She further testified that she had not had intercourse with any other man from June of 1960 to April of 1961 at which time the child was born. She further testified that she believes Robert Roberson to be the father of the said child. Her testimony was that Robert Roberson said he was unmarried and that he lived at a certain address in Albany but when she went to this address to inform the respondent about her pregnancy no one was known by that name at that address. Subsequently, Robert Roberson telephoned Dorothy Phillips, whereupon she informed him that she was pregnant and according to her testimony the respondent stated he would take care of the expenses and that she stay at school.
In January of 1961 Dorothy Phillips, accompanied by her father and mother, went to the Roberson's home and found the respondent shoveling snow at the time. Her testimony, and the testimony of her father, was to the effect that the situation was explained to Roberson and that they wanted to know what he was going to do about it. According to their testimony, Roberson stated he had responsibilities but he would do what he could. Later Dorothy Phillips, accompanied by her father and mother, visited at the home of Mr. and Mrs. Roberson at Albany but that Robert Roberson did not enter into the conversation at any time.
Dorothy Phillips definitely states that Robert Roberson is ...
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