Establishes a procedure for the signatory to an acknowledgment of paternity to rescind the acknowledgment by filing a petition with the court to vacate the acknowledgment

This measure would amend section 516-a of the Family Court Act and section 4135-b of the Public Health Law in relation to vacatur of an acknowledgment of paternity made by a minor.

Title IV-D of the Federal Social Security Act and its implementing regulations require State child support programs, as a condition of eligibility for Federal reimbursement, to include a "simple, civil process" for parents voluntarily to acknowledge paternity either in the hospital immediately upon an infant's birth or subsequently elsewhere and for the child support agencies to publicize and encourage use of this procedure. Such acknowledgments are equivalent to judicial orders of filiation and thus form the basis for child support orders. See 42 USCA §§ 654(4)(A), 654(23), 666(a)(5); 95 C.F.R. § 302.70(a)(5). Incentivized by Federal funding, use of acknowledgments of paternity as the predicate for child support orders has become widespread nationally. The Federal Office of Child Support Enforcement in the United States Department of Health and Human Services Administration for Children and Families reported that, in Fiscal Year 2010, "1.7 million paternities were established or acknowledged, of which 1.1 million involved in-hospital or other paternity acknowledgments." As implemented in New York pursuant to Family Court Act § 516-a and Public Health Law § 4135-b, such acknowledgments are widely used as the predicates for establishing orders of child support.

In requiring written and oral notices of rights to prospective signatories to voluntary acknowledgments of paternity to include "the rights (including, if one parent is a minor, any rights afforded due to minority status)," Federal law and regulations recognize that acknowledgments executed by minor parents may trigger special considerations warranting additional protections. See 42 U.S.C.A. 666(a)(5)(C)(i); 45 C.F.R. § 302.70(a)(5)(iii). Nonetheless, neither Federal nor New York State laws specify any rights or special procedures applicable either to the execution or rescission of voluntary acknowledgments by minor parents.

We, therefore, propose this measure to permit a signatory to an acknowledgment of paternity to file a petition to vacate it any time up to 60 days after the signatory reaches the age of 18, where the acknowledgment had been executed during his or her minority. Just as both the Family Court Act and the Public Health Law provide an earlier time limit for filing a vacatur petition where a proceeding had been convened constituting a "ratification" of the acknowledgment, so, too, this measure provides an alternative, earlier time limit where the time limit for the signatory to answer a petition to establish a child support order. In light of the signatory's minority, the measure provides an additional protection, i.e., an advisement at such

proceeding of his or her right to file a petition to vacate the acknowledgment within sixty days of the date of such proceeding. Significantly, even if granted, a petition to vacate a teen parent's acknowledgment of paternity does not automatically vacate the parent's child support obligation. To the contrary, it would simply result in the court ordering a DNA test to judicially establish paternity and child support.

Several other states have established extended time limits for petitions to vacate paternity acknowledgments executed by minors. Our measure most closely resembles the statute in California, which permits a signatory to rescind an acknowledgment "at any time up to 60 days after the parent reaches the age of 18 or becomes emancipated whichever first occurs." (California, unlike New York, has a formal, statutory emancipation procedure). An acknowledgment creates a presumption of paternity but is not actually binding until that time limit has run. See Calif. Family Code § 7577. Further, the Illinois Parentage Act provides that a paternity acknowledgment creates a presumption of paternity except that "if a minor has signed the acknowledgment of paternity or acknowledgment of parentage and denial of paternity, the presumption becomes conclusive six months after the minor reaches majority or is otherwise emancipated." See 750 Ill. Comp. Stat. § 45(5)(5)(b). Kansas law permits an application to rescind an acknowledgment of paternity to be filed "at any time until one year after that person attains age 18, unless the court finds that the child is more than one year of age and that revocation of the acknowledgment of paternity is not in the child's best interest." See Kansas Dom. Rel. Code §§ 23-204(b)(1), 23-209(e)(Rev. 11/09). Additionally, in Texas, a petition to vacate an acknowledgment of paternity based upon fraud, duress or material mistake of fact or a collateral attack upon an acknowledgment must be "commenced before the earlier of the fourth anniversary of the date of: (1) the signatory's 18th birthday; or (2) the removal of the signatory's disabilities of minority by court order, marriage, or by other operation of law." See Texas Family Code § 160.308(a).

Significantly, this measure will not impose any fiscal burdens upon State or local governments. Not only are the numbers of additional petitions to vacate paternity acknowledgments executed by minors expected to be small, but also Federal reimbursement will be available. For cases falling within the IV-D program - that is, cases in which a custodial parent is on public assistance or requests child support services from the child support agency, including proceedings to contest paternity or to vacate a paternity acknowledgment - Federal funds cover two-thirds of the costs of court proceedings. See 42 U.S.C. § 655; 45 C.F.R. § 304.21. Additionally, as the Federal Office of Child Support Enforcement has explained, "if paternity is contested in accordance with state law and the IV-D agency orders genetic testing in a IV-D case, Federal IV-D funding is available at 90 percent for the cost of such tests."

An acknowledgment of paternity may constitute the basis for establishing an order of child support lasting until the signatory's infant turns 21. When executed by a minor, there should be an avenue of relief to seek vacatur of an acknowledgment of paternity. The proposed measure, with its alternative time limits, provides a fair and effective approach to accommodating a recognition of the

judgmental limitations of minor parents with the need to ensure child support for their children.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after becoming a law and would apply prospectively.

2013 Legislative History:

Senate 4644-C (Sen. Bonacic) (amended & reported) Assembly 7375 (Assemblymember Weinstein) (reported to Codes)