Repeals section 516 of the family court act relating to agreement or compromise of support in paternity proceedings

Justification

Section 516, enacted in 1962 but derived from the old Domestic Relations Law, served two purposes. First, it encouraged putative fathers to settle paternity claims, thereby reducing the necessity for legal proceedings. The agreement offered the putative father certainty and a limitation on his future support obligation, while the interests of the child and mother were protected by the requirement for judicial review. Second, the statute helped ensure that the child would not be without support from the father. By furnishing an incentive to settle, the stat- ute tended to prevent support of the out-of-wedlock child from becoming lost in the intricacies of the process and the uncertainty of adjudica- tory outcome.

Bacon v. Bacon, 46 N.Y.2d 477, 480 (1979).

This section no longer is needed or justified because of technological advances made in blood genetic marker tests, statutory enactments requiring their use, and the evidentiary weight courts are required to accord their results.

Although blood grouping tests had been in use in paternity proceedings for many years, until 1981 they were admissible only for the purposes of excluding the respondent as father. As a result of scientific advances in the field, the Legislature, impressed by the increasing accuracy of the tests, repeatedly amended Section 532 to permit the use of blood tests as positive evidence of paternity as well. The most recent amend- ments, as well as decisions of the appellate courts and changes in federal law, have accorded weight to test results that is almost tanta- mount to evidentiary certitude. See, L. 1997, c. 398; L.1994, c. 170; Personal responsibility and Work Opportunity Reconciliation Act of 1996 Pub. Law 104-193; Barber v. Davis, 120 A.D.2d 364 (1st Dept., 1986); Nancy M. G. v. Dann OO, 148 A.D.2d 714 (2nd Dept., 1989); Discenza v. James M., 148 A.D.2d 196 (3rd Dept., 1989). Williams v. Lambert is not

the only court decision casting doubt on the constitutionality of this section.

In Clark v. Jeter, 486 U.S. 456 (1988), the Supreme Court held that a 6-year statute of limitations for paternity actions violated the equal protection clause in unacceptably differentiating between in-wedlock and out-of-wedlock children. Thereafter, it remanded a Wisconsin case, Gerhardt v. Estate of Moore, 407 N.W. 2d 895 (1987), judg. vacated, 486 U.S. 1050 (1988), to that state's Supreme Court for further consider- ation in light of Clark. That case concerned a Wisconsin statute allow- ing defendants in paternity proceedings to enter into settlements where- by they admitted paternity and paid off their child support obligation in one lump sum. Upon reconsideration, the Wisconsin court found that the same principle that rendered the different treatment of children born out-of-wedlock as opposed to marital children unconstitutional in Clark v. Jeter applied to preclude enforcement of a paternity settlement as a bar to a child's subsequent independent action for support. Gerhardt v. Estate of Moore, 441 N.W. 2d 734 (1989); see also Sturak v. Ozomo, ___N.W.2d___; 1999 WL 1044243 (Mich. App., Nov. 16, 1999); Crego v. Coleman, 232 Mich. App. 284, 591 N.W.2d 277 (Mich. App., 1999) (stat- ute similar to FCA § 516 violates equal protection).

Significantly, New York courts have held that individuals who were not parties to agreements under section 516 could not be deemed to be fore- closed from pursuing child support remedies. The Court of appeals held, in Adrianna G. v. Ruben O., 80 NY2d 409 (1992), that a welfare official, as assignee of the rights of a mother who had signed a section 516 agreement, is permitted to compel payment of child support despite the father's compliance with the court-approved agreement. Holding that the lower court had "failed in its duty to make an independent determination of the best interests of the child," the Supreme Court, Appellate Divi- sion, Fourth Department, in Matter of Michelle W. v. James P., 218 A.D.2d 175,178-9 (4th Dept., 1996), held an agreement under section 516 to be void and against public policy, where it released the obligor from any child support obligations beyond three years.

In upholding a challenge by the law guardian, the Court stated: Indeed, a contract depriving a child of his rights is not binding upon the child citations omitted. Agreements cannot be upheld where children are treated as chattels and their rights bartered away ... Here, the parties have in effect bargained away the birthright of the child. This agreement not only set forth the parental rights and support obligation of respondent, it completely eradicated his parental responsibilities. A parent cannot buy another parent's rights or sell his or her own rights. A contract exchanging parental rights for compensation simply cannot be countenanced by the courts. citation omitted Accord, Andre v. Warren, 248 A.D.2d 271 (1st Dept., 1998) (remand for appointment of law guardian and hearing on issue of whether agreement fulfills child's best inter- ests); Department of Public Aid ex rel Cox v. Miller, 146 III.2d 399, 586 N.E.2d 1251 (S.Ct., III., 1992). Nor does the recent case of Clara C. v. William L., 181 Misc.2d 241 (Fam. Ct., Kings Co., 1999), app. pending, ___A.D.2d___ (1999), providing contrary authority since its

ruling upholding a section 516 agreement rested in large measure on the fact that one of the parties to the agreement, rather than the child, was challenging its enforcement.

Significantly, section 513 of the Family Court Act has been amended to make it clear that in-wedlock and out-of-wedlock children must be treat- ed similarly for the purposes of support, thus ending uncertainty about support awards for out-of-wedlock children. In sum, intervening develop- ments have rendered section 516's compromise procedure unnecessary, likely inimical to a child's best interests, and constitutionally suspect. Consequently, judges should not be called upon to approve these agreements, and that the section should be repealed.

Legislative history

2007-08; A.3090 - A.Judiciary Committee 2005-06; A.5860 - Passed Assembly 2003-04; A.4284/S3570 - Passed Assembly/ S. Child and Families 2002; A.4567 - Passed Assembly 2001; A.4567 - Assembly Calendar 2000; A.7161 - Assembly Judiciary Committee 1999; A.7161 - Passed Assembly 1997-98; A.7039 - Assembly Calendar 1995-96; A.930 - Passed Assembly 1993-94; A.3451 - Passed Assembly 1991-92; A.6659 - Passed Assembly 1989-90; A.6143 - Passed Assembly

Fiscal implications for state and local governments

None.

Effective date

Immediately.