Shan F. v. Francis F.

Decision Date14 September 1976
Citation387 N.Y.S.2d 593,88 Misc.2d 165
PartiesIn the Matter of SHAN F., on behalf of Francis F. and Peter F., Petitioner, v. FRANCIS F., Respondent.
CourtNew York City Court

NANETTE DEMBITZ, Judge:

The illegitimate child's constitutional right to equal treatment with the legitimate child,--a right first recognized by the United States Supreme Court in 1968 1--is the underlying issue in this proceeding for the support of two illegitimate children by their father.

Respondent-father moves to dismiss their mother's petition on their behalf for their support on the grounds that section 516 of the Family Court Act, dealing with the support of illegitimate children, provides that the performance of a judicially-approved agreement to support them bars any other remedy 2 and that he is performing such an approved agreement. The issue of the constitutionality of the prohibition imposed by section 516 arises because in the case of legitimate children an agreement, though incorporated in a decree, is no bar to a support petition or to a support order for a greater sum than the agreed amount. Since an order in the instant proceeding would require respondent to pay substantially more for his children's support than he pays under the agreement, the validity of the special bar to suit in the case of illegitimate children is of crucial significance herein. While this Court is mindful of caveats against the initial determination of a constitutional question by a lower court, there is no appellate ruling on the constitutionality of section 516 or its predecessor sections, and the issue is inescapably presented in the case at bar.

Briefly summarized, the facts are that respondent-father is a physician with an annual income according to his 1975 tax return of over $104,000; he cohabited with petitioner from 1957 to 1968; they resided together as a family with their two sons from their births in 1960 and 1961 to respondent's separation from petitioner in 1968, respondent supporting petitioner and the children amply during that period. In petitioner's paternity suit after the separation, a finding of paternity was made on the basis of respondent's acknowledgement. He and petitioner then executed a support agreement for his payment of $50. a week per child and for various items, which agreement was approved in 1968 by a judge of this Court.

On the basis of precedents and principles discussed in sections I and II below, the Court concludes that section 516 is unconstitutional under the equal protection guarantee, as applied to illegitimate children like the instant ones whose paternity was clear at the time of the agreement. A support order is entered (see section IV below and filed supplemental findings) for $135. a week for each child plus $600. a year college tuition for the elder.

I. Application of Section 516 Prohibition to Acknowledged Illegitimate Child.

Petitioner's attorney suggests that the Court need not reach the question of the constitutionality of section 516 because it should be interpreted as inapplicable to the instant case. Although the section in terms covers agreements for all illegitimate children, the suggestion is that it was not intended to bar escalation of an agreed amount where a putative father's paternity had, as in the instant case, been established prior to the agreement.

Several points can be mustered in support of this interpretation of section 516. The agreements involved in most of the New York cases under that provision and its predecessors have in fact included a denial of paternity; 3 The Decedent Estate Law recognizes the importance of findings of paternity as contrasted with such agreements; 4 and the mother's promise to refrain from an effort to establish paternity is deemed a consideration for such an agreement. 5 Further, the primary social utility of provisions like section 516 is to secure support for a child whose paternity is in doubt. Finally, an exclusion from the section 516 prohibition, of judicially-approved agreements for children of established paternity, would render it consistent with sections 511 and 545 of the Family Court Act and effectuate their intent. Such sections provide respectively that the Court has jurisdiction to order support in any proceeding 'in which it makes a finding of paternity' and that 'in a proceeding in which the Court has made an order of filiation . . . (it) shall direct a father . . . to pay . . . a . . . reasonable sum for the support and education of the child until the child is twenty-one.'

On the other hand, however, to give such an effect to the latter sections would contravene the established and commonsense principle that a specific provision--here section 516--must be given force as an exception to general edicts--here sections 511 and 545. Further, none of the decisions under section 516 or its predecessor sections limit the prohibition, or even suggest its limitation, in the manner proposed by petitioner's attorney. Nor indeed, so far as research discloses, do decisions under its counterpart provisions in other states; the provision is common, appearing in the Uniform Illegitimacy Act. 6 Particularly since the all-inclusive language of the predecessor statutes to section 516 was carried unchanged into the Family Court Act although that Act re-cast paternity proceedings in other respects, a holding that the Legislature had a silent intent to limit section 516 seems insufficiently supported.

II. Constitutionality of Discriminations Against Illegitimates.

Section 516 effects a discrimination against illegitimate as compared to legitimate children in that in the case of legitimate children their support is always subject to escalation on the basis of increased needs of the child or means of the parent. No agreement, though approved by incorporation in a judicial decree or order, is conclusive against them. 7 At best under section 516, the adequacy of provision for the child's future needs depends on the accuracy of foresight of the parties to the agreement and of the approving judge; the illegitimate child thus lacks the protection afforded the legitimate of the right to a judicial needs-means determination from time to time during his minority.

Shortly after the United States Supreme Court's holding in 1968 that it is unconstitutional for 'the illegitimate child (to) be denied rights merely because of his birth out of wedlock' (Levy, 391 U.S. at p. 71, 88 S.Ct. at p. 1511), the Honorable Justine Wise Polier of this Court ruled on the basis thereof that a support agreement should not be approved for an illegitimate child unless it provided for possible escalation on a needs-means basis. Storm v. None, 57 Misc.2d 342, 291 N.Y.S.2d 515. While courts of other States have since Levy held invalid a variety of provisions distinguishing between illegitimate and legitimate children, 8 research discloses no consideration of the constitutional implications of a bar-to-suit provision like section 516, 9 except for Judge Polier's.

In the interim since Levy and Judge Polier's decision, the United States Supreme Court has held unconstitutional a number of other statutory discriminations against illegitimate children, 10 including that in the Texas child support laws. In the case from Texas the Court said:

'(O)nce a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.' Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56.

This language seems to confirm the wisdom of Judge Polier's application in Storm of the Levy holding and her view that the limitation of section 516 is constitutionally required. On the other hand, it could be argued that Gomez is distinguishable from the instant case in that the issue there was a State's complete denial to illegitimate children of a right to paternal support while according it to the legitimate (409 U.S. at pp. 535--6, 93 S.Ct. 872). The instant New York provision obviously recognizes the illegitimate's right to paternal support--indeed to a judicially-approved measure of it. Further, although the Supreme Court has followed Levy in most of its holdings, it has also upheld by opinion the constitutionality of one discrimination against the illegitimate 11 and affirmed another by an equally divided court. 12 In view of the gravity of a ruling on constitutionality, and since there is no absolute rule prohibiting discrimination between legitimate and illegitimate children, each measure being judged individually, 13 the doctrinal developments since Storm will be reviewed as well as possible justifications for the instant provision.

III. Partial Unconstitutionality of Section 516.
A. Standard for Evaluating Constitutionality.

At the outset is the question of the proper standard for determining constitutionality of a differentiation based on legitimacy. The Supreme Court has refrained from holding that such a classification is in the suspect category and sustainable only on the basis of a 'compelling' governmental interest. 14 However, an analysis of its decisions shows that a differentiation between illegitimate and legitimate children must be grounded on more than a mere rational connection with a State interest--the minimum basis for compliance with equal protection. 15 The Court's test of the constitutionality of such a classification eschews mere conceptual, possible rationality; instead it requires a realistic consideration of whether the measure will in fact substantially advance the State purpose and also of whether the purpose could be...

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2 cases
  • Daniel J.G. by Lynn G. v. Michael M.
    • United States
    • New York Supreme Court
    • April 16, 1991
    ... ...         This Court is aware that shortly before Bacon, then Family Court Judge Dembitz, in Matter of Shan F. v. Francis F., 88 Misc.2d 165, 387 N.Y.S.2d 593 (1976), held the statute to be unconstitutional in instances where paternity was clearly or ... ...
  • Ferrer v. Ferrer
    • United States
    • New York Supreme Court — Appellate Division
    • June 7, 1977
    ...395 N.Y.S.2d 197 ... 58 A.D.2d 529 ... In re Shan FERRER, Petitioner-Respondent, ... Francis P. FERRER, Respondent-Appellant ... In re Shan Smith DeCLEMENTE, Petitioner-Respondent, ... Francis P ... ...

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