senate Bill S4644C

Signed By Governor
2013-2014 Legislative Session

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

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Archive: Last Bill Status - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Oct 21, 2013 signed chap.402
Oct 09, 2013 delivered to governor
Jun 17, 2013 returned to senate
passed assembly
ordered to third reading rules cal.262
substituted for a7375
Jun 10, 2013 referred to codes
delivered to assembly
passed senate
Jun 03, 2013 advanced to third reading
May 30, 2013 2nd report cal.
May 29, 2013 1st report cal.762
May 14, 2013 print number 4644c
amend and recommit to judiciary
May 10, 2013 print number 4644b
amend and recommit to judiciary
Apr 25, 2013 print number 4644a
amend and recommit to judiciary
Apr 16, 2013 referred to judiciary

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S4644 - Bill Details

See Assembly Version of this Bill:
A7375
Law Section:
Family Court Act
Laws Affected:
Amd §516-a, Fam Ct Act; amd §4135-b, Pub Health L

S4644 - Bill Texts

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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.

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BILL NUMBER:S4644

TITLE OF BILL: An act to amend the family court act and the public
health law, in relation to acknowledgments of paternity executed by
juveniles under the age of eighteen

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

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); 45
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 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.

Traditional concepts of contract law afford guidance and, indeed, in
the absence of a contrary statute, arguably apply in such cases.
Contracts executed by minors have long been deemed voidable up to a
reasonable time after the minor reaches the age of majority, both
nationally and in New York State. See, e.g., De Vito v. City of
Mechanicville, 251 A.D. 514 (3rd Dept., 1937); Sternlieb v. Normandie
Nat. Securities Corp., 263 N.Y. 245 (1934); Joseph v. Schatzkin, 259
N.Y. 241 (1932); Casey v. Kastel, 237 N.Y. 305 (1924); Slocum v.
Hooker, 13 Barb. 536 (Sup. Ct., N.Y.Co., 1852); Aetna Cas. & Sur. Co.
v. Duncan, 972 F.2d 523 (3d Cir. 1992); 5 Williston on Contracts § 9:5
(4th ed., database updated 2012). Section 3-101 of the General


Obligations Law sets the age of majority at 18 with respect to the
voidability of contracts executed by minors.

Consistent with these long-standing principles and with the General
Obligations Law, we propose this measure to permit a signatory to an
acknowledgment of paternity to file a petition to vacate it within 60
days of the signatory's attaining 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
signatory actually appears for a judicial proceeding, including a
proceeding to establish a child support order. In light of the
signatory's minority, the measure provides additional protections,
i.e., that the "parent or guardian or attorney of the signatory must
also have been present at such judicial proceeding and the signatory
must have been advised 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."

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(3)(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 create a fiscal burden for 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."

This measure thus resolves the apparent contradiction between the
deadlines in current Family Court Act § 516-a and Public Health law
4135-b for filing petitions to vacate paternity acknowledgments and
the voidability of contractual obligations undertaken by minors under
long-standing precedents and the General Obligations Law. An
acknowledgment of paternity may constitute the basis for establishing
an order of child support lasting until the signatory's infant turns
21, i.e., a 21-year contract requiring payment of substantial sums of
money. When executed by a minor, the acknowledgment of paternity
engendering that contract should be voidable, just as are other
minor's contracts. 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.

Legislative History: None. New proposal.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4644

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 16, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN  ACT  to  amend  the  family  court act and the public health law, in
  relation to acknowledgments of paternity executed by  juveniles  under
  the age of eighteen

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions (b) and (c) of section  516-a  of  the  family
court act, as amended by chapter 462 of the laws of 2007, are amended to
read as follows:
  (b)  (i)  [An]  WHERE  A  SIGNATORY  TO AN acknowledgment of paternity
executed pursuant to section one hundred eleven-k of the social services
law or section four thousand one hundred  thirty-five-b  of  the  public
health  law HAD ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF
THE ACKNOWLEDGMENT, THE SIGNATORY may [be rescinded] SEEK TO RESCIND THE
ACKNOWLEDGMENT by [either signator's] filing [of] a  petition  with  the
court  to  vacate the acknowledgment within the earlier of sixty days of
the date of signing the acknowledgment or the date of an  administrative
or a judicial proceeding (including, BUT NOT LIMITED TO, a proceeding to
establish a support order) relating to the child in which [either signa-
tor]  THE SIGNATORY is a party. [If, at any time before or after a peti-
tion is filed, a signator dies or becomes  mentally  ill  or  cannot  be
found within the state, neither the proceeding nor the right to commence
the  proceeding  shall abate but may be commenced or continued by any of
the persons authorized by this article to commence a paternity  proceed-
ing.]  For purposes of this section, the "date of an administrative or a
judicial proceeding" shall be  the  date  by  which  the  respondent  is
required to answer the petition. [The]
  (II)  WHERE  A  SIGNATORY  TO  AN ACKNOWLEDGMENT OF PATERNITY EXECUTED
PURSUANT TO SECTION ONE HUNDRED ELEVEN-K OF THE SOCIAL SERVICES  LAW  OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09330-02-3

S. 4644                             2

SECTION FOUR THOUSAND ONE HUNDRED THIRTY-FIVE-B OF THE PUBLIC HEALTH LAW
HAD  NOT  ATTAINED  THE  AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE
ACKNOWLEDGMENT, THE SIGNATORY MAY SEEK TO RESCIND THE ACKNOWLEDGMENT  BY
FILING A PETITION WITH THE COURT TO VACATE THE ACKNOWLEDGMENT WITHIN THE
EARLIER  OF  SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE OF EIGH-
TEEN YEARS OR SIXTY DAYS OF  THE  DATE  ON  WHICH  THE  SIGNATORY  FIRST
APPEARED  FOR  A  JUDICIAL  PROCEEDING (INCLUDING, BUT NOT LIMITED TO, A
PROCEEDING TO ESTABLISH A SUPPORT ORDER) RELATING TO THE CHILD IN  WHICH
THE  SIGNATORY  IS  A  PARTY;  PROVIDED,  HOWEVER,  THAT THE SIGNATORY'S
PARENT, GUARDIAN OR ATTORNEY MUST ALSO HAVE BEEN PRESENT AT  SUCH  JUDI-
CIAL  PROCEEDING  AND  THE  SIGNATORY  MUST  HAVE  BEEN  ADVISED AT SUCH
PROCEEDING OF HIS OR HER RIGHT TO FILE A PETITION TO VACATE THE ACKNOWL-
EDGMENT WITHIN SIXTY DAYS OF THE DATE OF SUCH PROCEEDING.
  (III) WHERE A PETITION TO VACATE AN ACKNOWLEDGMENT  OF  PATERNITY  HAS
BEEN FILED IN ACCORDANCE WITH PARAGRAPH (I) OR (II) OF THIS SUBDIVISION,
THE court shall order genetic marker tests or DNA tests for the determi-
nation of the child's paternity. No such test shall be ordered, however,
upon a written finding by the court that it is not in the best interests
of  the  child  on the basis of res judicata, equitable estoppel, or the
presumption of legitimacy of a child born to a  married  woman.  If  the
court  determines,  following  the  test, that the person who signed the
acknowledgment is the father of the child, the court shall make a  find-
ing  of  paternity  and enter an order of filiation. If the court deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  [(ii)] (IV) After the expiration of [sixty days of  the  execution  of
the acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (I) AND (II)
OF  THIS  SUBDIVISION,  [either  signator]  ANY OF THE SIGNATORIES TO AN
ACKNOWLEDGMENT OF PATERNITY may challenge the acknowledgment [of  pater-
nity]  in  court  by  alleging  and  proving  fraud, duress, or material
mistake of fact. [If, at any time before or after a petition is filed, a
signator dies or becomes mentally ill or  cannot  be  found  within  the
state,  neither  the proceeding nor the right to commence the proceeding
shall abate but may be commenced or continued  by  any  of  the  persons
authorized  by  this article to commence a paternity proceeding.] If the
petitioner proves to the court that the acknowledgment of paternity  was
signed  under  fraud,  duress, or due to a material mistake of fact, the
court shall THEN order genetic marker tests or DNA tests for the  deter-
mination of the child's paternity. No such test shall be ordered, howev-
er,  upon  a  written  finding  by  the court that it is not in the best
interests of the child on the basis of res judicata, equitable estoppel,
or the presumption of legitimacy of a child born to a married woman.  If
the court determines, following the test, that the person who signed the
acknowledgment  is the father of the child, the court shall make a find-
ing of paternity and enter an order of filiation. If  the  court  deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  (V)  IF,  AT ANY TIME BEFORE OR AFTER A SIGNATORY HAS FILED A PETITION
TO VACATE AN ACKNOWLEDGMENT OF PATERNITY PURSUANT TO  THIS  SUBDIVISION,
THE SIGNATORY DIES OR BECOMES MENTALLY ILL OR CANNOT BE FOUND WITHIN THE
STATE,  NEITHER  THE PROCEEDING NOR THE RIGHT TO COMMENCE THE PROCEEDING
SHALL ABATE BUT MAY BE COMMENCED OR CONTINUED  BY  ANY  OF  THE  PERSONS
AUTHORIZED BY THIS ARTICLE TO COMMENCE A PATERNITY PROCEEDING.
  (c)  Neither [signator's] SIGNATORY'S legal obligations, including the
obligation for child support arising from  the  acknowledgment,  may  be
suspended  during  the  challenge  to the acknowledgment except for good

S. 4644                             3

cause as the court may find. If the court vacates the acknowledgment  of
paternity,  the  court  shall immediately provide a copy of the order to
the registrar of the district in which the child's birth certificate  is
filed  and  also to the putative father registry operated by the depart-
ment of social services pursuant to section three hundred  seventy-two-c
of  the social services law. In addition, if the mother of the child who
is the subject of the acknowledgment is  in  receipt  of  child  support
services pursuant to title six-A of article three of the social services
law,  the  court  shall  immediately  provide a copy of the order to the
child support enforcement unit of  the  social  services  district  that
provides the mother with such services.
  S  2. Subdivisions 1 and 2 of section 4135-b of the public health law,
subdivision 1 as added by chapter 59 of the laws of 1993, paragraph  (a)
of subdivision 1 as amended by chapter 214 of the laws of 1998, subdivi-
sion  2  as amended by chapter 170 of the laws of 1994 and paragraph (b)
of subdivision 2 as amended by chapter 398 of  the  laws  of  1997,  are
amended to read as follows:
  1.  (a)  Immediately preceding or following the in-hospital birth of a
child to an unmarried woman, the person in charge of  such  hospital  or
his or her designated representative shall provide to the child's mother
and  putative  father, if such father is readily identifiable and avail-
able, the documents and written instructions necessary for  such  mother
and putative father to complete an acknowledgment of paternity witnessed
by  two  persons  not  related to the signatory. Such acknowledgment, if
signed by both parties, at any time following  the  birth  of  a  child,
shall  be filed with the registrar at the same time at which the certif-
icate of live birth is filed, if possible, or anytime thereafter.  Noth-
ing  herein  shall  be  deemed  to  require the person in charge of such
hospital or his or her designee to seek out or otherwise locate a  puta-
tive  father  who is not readily identifiable or available. The acknowl-
edgment shall be executed on a form provided by the commissioner  devel-
oped in consultation with the appropriate commissioner of the department
of  family assistance, which shall include the social security number of
the mother and of the putative father and provide in plain language  (i)
a  statement by the mother consenting to the acknowledgment of paternity
and a statement that the putative father is the  only  possible  father,
(ii) a statement by the putative father that he is the biological father
of  the child, and (iii) a statement that the signing of the acknowledg-
ment of paternity by both parties shall have the same force  and  effect
as  an  order  of  filiation entered after a court hearing by a court of
competent jurisdiction, including an obligation to provide  support  for
the  child except that, only if filed with the registrar of the district
in which the birth certificate has been filed, will  the  acknowledgment
have such force and effect with respect to inheritance rights.
  (B)  Prior  to  the  execution  of an acknowledgment of paternity, the
mother and the putative father shall be provided orally,  which  may  be
through  the  use  of audio or video equipment, and in writing with such
information as is required pursuant to  this  section  with  respect  to
their  rights and the consequences of signing a voluntary acknowledgment
of paternity including, but not limited to[,]:
  (I) that the signing of the acknowledgment of paternity  shall  estab-
lish the paternity of the child and shall have the same force and effect
as  an  order  of  paternity or filiation issued by a court of competent
jurisdiction establishing the duty of both parties  to  provide  support
for the child;

S. 4644                             4

  (II)  that  if such an acknowledgment is not made, the putative father
can be held liable for support only if the family court, after  a  hear-
ing,  makes an order declaring that the putative father is the father of
the child whereupon the court may make an order of support which may  be
retroactive to the birth of the child;
  (III) that if made a respondent in a proceeding to establish paternity
the  putative  father  has a right to free legal representation if indi-
gent;
  (IV) that the putative father has a right to a genetic marker test  or
to a DNA test when available;
  (V)  that  by executing the acknowledgment, the putative father waives
his right to a hearing, to which he would otherwise be entitled, on  the
issue of paternity;
  (VI)  that  a  copy  of the acknowledgment of paternity shall be filed
with the putative father registry  pursuant  to  section  three  hundred
seventy-two-c  of  the  social  services  law,  and that such filing may
establish the child's right to  inheritance  from  the  putative  father
pursuant  to  clause (B) of subparagraph two of paragraph (a) of section
4-1.2 of the estates, powers and trusts law;
  (VII) that, if such acknowledgment is filed with the registrar of  the
district in which the birth certificate has been filed, such acknowledg-
ment will establish inheritance rights from the putative father pursuant
to  clause  (A) of subparagraph two of paragraph (a) of section 4-1.2 of
the estates, powers and trusts law;
  (VIII) that no further  judicial  or  administrative  proceedings  are
required  to  [ratio] RATIFY an unchallenged acknowledgment of paternity
provided, however, that [both the putative father and the mother of  the
child]:
  (A)  A  SIGNATORY  TO AN ACKNOWLEDGMENT OF PATERNITY, WHO HAD ATTAINED
THE AGE OF EIGHTEEN AT THE TIME  OF  EXECUTION  OF  THE  ACKNOWLEDGMENT,
SHALL have the right to rescind the acknowledgment within the earlier of
sixty days from the date of signing the acknowledgment or the date of an
administrative  or a judicial proceeding (including, BUT NOT LIMITED TO,
a proceeding to establish a support order)  relating  to  the  child  in
which  [either]  THE signatory is a party[;], PROVIDED that the "date of
an administrative or a judicial proceeding" shall be the date  by  which
the respondent is required to answer the petition;
  (B)  A  SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO HAD NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT, SHALL HAVE THE RIGHT TO  RESCIND  THE  ACKNOWLEDGMENT  WITHIN  THE
EARLIER  OF  SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE OF EIGH-
TEEN YEARS OR SIXTY DAYS OF  THE  DATE  ON  WHICH  THE  SIGNATORY  FIRST
APPEARS  FOR  A  JUDICIAL  PROCEEDING  (INCLUDING, BUT NOT LIMITED TO, A
PROCEEDING  TO  ESTABLISH  A  SUPPORT  ORDER)  RELATING  TO  THE  CHILD;
PROVIDED,  HOWEVER,  THAT  THE  SIGNATORY'S PARENT, GUARDIAN OR ATTORNEY
MUST ALSO HAVE BEEN PRESENT AT SUCH JUDICIAL PROCEEDING AND THE SIGNATO-
RY MUST HAVE BEEN ADVISED 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;
  (IX) that after the expiration of [sixty days of the execution of  the
acknowledgment]  THE  TIME  LIMITS  SET  FORTH IN CLAUSES (A) AND (B) OF
SUBPARAGRAPH (VIII) OF THIS PARAGRAPH, [either  signatory]  ANY  OF  THE
SIGNATORIES  may challenge the acknowledgment of paternity in court only
on the basis of fraud, duress, or material mistake  of  fact,  with  the
burden of proof on the party challenging the voluntary acknowledgment;

S. 4644                             5

  (X)  that  [they]  THE  PUTATIVE FATHER AND MOTHER may wish to consult
with [an attorney] ATTORNEYS before executing  the  acknowledgment;  and
that  they  have  the  right to seek legal representation and supportive
services including counseling regarding such acknowledgment;
  (XI)  that  the  acknowledgment  of paternity may be the basis for the
putative father establishing custody and visitation rights to the  child
[; if the acknowledgment is signed, it may be the basis] AND for requir-
ing the putative father's consent prior to an adoption proceeding;
  (XII)  THAT  the mother's refusal to sign the acknowledgment shall not
be deemed a failure to  cooperate  in  establishing  paternity  for  the
child; and
  (XIII)  THAT  the child may bear the last name of either parent, which
name shall not affect the legal status of the child.
In addition, the governing body  of  such  hospital  shall  insure  that
appropriate  staff  shall  provide  to  the  child's mother and putative
father, prior to the mother's discharge from the hospital, the  opportu-
nity  to  speak with hospital staff to obtain clarifying information and
answers to their questions about paternity establishment, and shall also
provide the telephone number of the local support collection unit.
  [(b)] (C) Within ten days after receiving the  certificate  of  birth,
the registrar shall furnish without charge to each parent or guardian of
the  child  or  to  the mother at the address designated by her for that
purpose, a certified copy of the certificate of birth and,  if  applica-
ble, a certified copy of the written acknowledgment of paternity. If the
mother  is  in receipt of child support enforcement services pursuant to
title six-A of article three of the social services law,  the  registrar
also shall furnish without charge a certified copy of the certificate of
birth and, if applicable, a certified copy of the written acknowledgment
of  paternity to the social services district of the county within which
the mother resides.
  2. (a) When a child's paternity is acknowledged  voluntarily  pursuant
to  section  one hundred eleven-k of the social services law, the social
services official  shall  file  the  executed  acknowledgment  with  the
registrar  of  the district in which the birth occurred and in which the
birth certificate  has been filed.
  (b) Where a child's paternity has not  been  acknowledged  voluntarily
pursuant  to  paragraph  (a) of subdivision one of this section or para-
graph (a) of this subdivision,  the  child's  mother  and  the  putative
father  may voluntarily acknowledge a child's paternity pursuant to this
paragraph by signing the acknowledgment of paternity [provided, however,
that both the putative father and the mother of the child].
  (C) A SIGNATORY TO AN ACKNOWLEDGMENT OF PATERNITY,  WHO  HAS  ATTAINED
THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDGMENT SHALL
have the right to rescind the acknowledgment within the earlier of sixty
days  from  the  date  of  signing  the acknowledgment or the date of an
administrative or a judicial proceeding (including, BUT NOT LIMITED  TO,
a  proceeding  to  establish  a  support order) relating to the child in
which either signatory is a party; PROVIDED that for  purposes  of  this
section,  the "date of an administrative or a judicial proceeding" shall
be the date by which the respondent is required to answer the petition[;
that after].
  (D) A SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO  HAS  NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT,  SHALL  HAVE  THE  RIGHT  TO RESCIND THE ACKNOWLEDGMENT WITHIN THE
EARLIER OF SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE  OF  EIGH-
TEEN  YEARS  OR  SIXTY  DAYS  OF  THE  DATE ON WHICH THE SIGNATORY FIRST

S. 4644                             6

APPEARS FOR A JUDICIAL PROCEEDING (INCLUDING,  BUT  NOT  LIMITED  TO,  A
PROCEEDING  TO ESTABLISH A SUPPORT ORDER) RELATING TO THE CHILD IN WHICH
THE SIGNATORY IS A PARTY; PROVIDED, HOWEVER, THAT A PARENT  OR  GUARDIAN
OR  ATTORNEY  OF THE SIGNATORY MUST ALSO HAVE BEEN PRESENT AT SUCH JUDI-
CIAL PROCEEDING AND  THE  SIGNATORY  MUST  HAVE  BEEN  ADVISED  AT  SUCH
PROCEEDING OF HIS OR HER RIGHT TO FILE A PETITION TO VACATE THE ACKNOWL-
EDGMENT WITHIN SIXTY DAYS OF THE DATE OF SUCH PROCEEDING.
  (E)  AFTER  the  expiration  of  [sixty  days  of the execution of the
acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (C) AND  (D)  OF
THIS SUBDIVISION, [either signator] ANY OF THE SIGNATORIES may challenge
the  acknowledgment  of  paternity  in court only on the basis of fraud,
duress, or material mistake of fact, with the burden  of  proof  on  the
party challenging the voluntary acknowledgment. The acknowledgment shall
have full force and effect once so signed. The original or a copy of the
[acknowledgement]  ACKNOWLEDGMENT  shall  be filed with the registrar of
the district in which the birth certificate has been filed.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

S4644A - Bill Details

See Assembly Version of this Bill:
A7375
Law Section:
Family Court Act
Laws Affected:
Amd §516-a, Fam Ct Act; amd §4135-b, Pub Health L

S4644A - Bill Texts

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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.

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BILL NUMBER:S4644A

TITLE OF BILL: An act to amend the family court act and the public
health law, in relation to acknowledgments of paternity executed by
juveniles under the age of eighteen

TITLE OF BILL: An act to amend the family court act and the public
health law, in relation to acknowledgments of paternity executed by
juveniles under the age of eighteen

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

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); 45
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.

Traditional concepts of contract law afford guidance and, indeed, in
the absence of a contrary statute, arguably apply in such cases.
Contracts executed by minors have long been deemed voidable up to a
reasonable time after the minor reaches the age of majority, both
nationally and in New York State. See, e.g., De Vito v. City of
Mechanicville, 251 A.D. 514 (3rd Dept., 1937); Sternlieb v. Normandie
Nat. Securities Corp., 263 N.Y. 245 (1934); Joseph v. Schatzkin, 259


N.Y. 241 (1932); Casey v. Kastel, 237 N.Y. 305 (1924); Slocum v.
Hooker, 13 Barb. 536 (Sup. Ct., N.Y.Co., 1852); Aetna Cas. & Sur. Co.
v. Duncan, 972 F.2d 523 (3d Cir. 1992); 5 Williston on Contracts § 9:5
(4th ed., database updated 2012). Section 3-101 of the General
Obligations Law sets the age of majority at 18 with respect to the
voidability of contracts executed by minors.

Consistent with these long-standing principles and with the General
Obligations Law, we propose this measure to permit a signatory to an
acknowledgment of paternity to file a petition to vacate it within 60
days of the signatory's attaining 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
signatory actually appears for a judicial proceeding, including a
proceeding to establish a child support order. In light of the
signatory's minority, the measure provides an additional protection,
i.e., that the "signatory must have been advised 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."

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 create a fiscal burden for 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."

This measure thus resolves the apparent contradiction between the
deadlines in current Family Court Act § 516-a and Public Health law
4135-b for filing petitions to vacate paternity acknowledgments and
the voidability of contractual obligations undertaken by minors under
long-standing precedents and the General Obligations Law. An
acknowledgment of paternity may constitute the basis for establishing
an order of child support lasting until the signatory's infant turns
21, i.e., a 21-year contract requiring payment of substantial sums of
money. When executed by a minor, the acknowledgment of paternity
engendering that contract should be voidable, just as are other
minor's contracts. 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.

Legislative History: None. New proposal.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4644--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 16, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend  the  family  court act and the public health law, in
  relation to acknowledgments of paternity executed by  juveniles  under
  the age of eighteen

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions (b) and (c) of section  516-a  of  the  family
court act, as amended by chapter 462 of the laws of 2007, are amended to
read as follows:
  (b)  (i)  [An]  WHERE  A  SIGNATORY  TO AN acknowledgment of paternity
executed pursuant to section one hundred eleven-k of the social services
law or section four thousand one hundred  thirty-five-b  of  the  public
health  law HAD ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF
THE ACKNOWLEDGMENT, THE SIGNATORY may [be rescinded] SEEK TO RESCIND THE
ACKNOWLEDGMENT by [either signator's] filing [of] a  petition  with  the
court  to  vacate the acknowledgment within the earlier of sixty days of
the date of signing the acknowledgment or the date of an  administrative
or a judicial proceeding (including, BUT NOT LIMITED TO, a proceeding to
establish a support order) relating to the child in which [either signa-
tor]  THE SIGNATORY is a party. [If, at any time before or after a peti-
tion is filed, a signator dies or becomes  mentally  ill  or  cannot  be
found within the state, neither the proceeding nor the right to commence
the  proceeding  shall abate but may be commenced or continued by any of
the persons authorized by this article to commence a paternity  proceed-
ing.]  For purposes of this section, the "date of an administrative or a
judicial proceeding" shall be  the  date  by  which  the  respondent  is
required to answer the petition. [The]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09330-03-3

S. 4644--A                          2

  (II)  WHERE  A  SIGNATORY  TO  AN ACKNOWLEDGMENT OF PATERNITY EXECUTED
PURSUANT TO SECTION ONE HUNDRED ELEVEN-K OF THE SOCIAL SERVICES  LAW  OR
SECTION FOUR THOUSAND ONE HUNDRED THIRTY-FIVE-B OF THE PUBLIC HEALTH LAW
HAD  NOT  ATTAINED  THE  AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE
ACKNOWLEDGMENT,  THE SIGNATORY MAY SEEK TO RESCIND THE ACKNOWLEDGMENT BY
FILING A PETITION WITH THE COURT TO VACATE THE ACKNOWLEDGMENT WITHIN THE
EARLIER OF SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE  OF  EIGH-
TEEN  YEARS  OR  SIXTY  DAYS  OF  THE  DATE ON WHICH THE SIGNATORY FIRST
APPEARED FOR A JUDICIAL PROCEEDING (INCLUDING, BUT  NOT  LIMITED  TO,  A
PROCEEDING  TO ESTABLISH A SUPPORT ORDER) RELATING TO THE CHILD IN WHICH
THE SIGNATORY IS A PARTY; PROVIDED, HOWEVER,  THAT  THE  SIGNATORY  MUST
HAVE BEEN ADVISED AT SUCH PROCEEDING OF HIS OR HER RIGHT TO FILE A PETI-
TION  TO VACATE THE ACKNOWLEDGMENT WITHIN SIXTY DAYS OF THE DATE OF SUCH
PROCEEDING.
  (III) WHERE A PETITION TO VACATE AN ACKNOWLEDGMENT  OF  PATERNITY  HAS
BEEN FILED IN ACCORDANCE WITH PARAGRAPH (I) OR (II) OF THIS SUBDIVISION,
THE court shall order genetic marker tests or DNA tests for the determi-
nation of the child's paternity. No such test shall be ordered, however,
upon a written finding by the court that it is not in the best interests
of  the  child  on the basis of res judicata, equitable estoppel, or the
presumption of legitimacy of a child born to a  married  woman.  If  the
court  determines,  following  the  test, that the person who signed the
acknowledgment is the father of the child, the court shall make a  find-
ing  of  paternity  and enter an order of filiation. If the court deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  [(ii)] (IV) After the expiration of [sixty days of  the  execution  of
the acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (I) AND (II)
OF  THIS  SUBDIVISION,  [either  signator]  ANY OF THE SIGNATORIES TO AN
ACKNOWLEDGMENT OF PATERNITY may challenge the acknowledgment [of  pater-
nity]  in  court  by  alleging  and  proving  fraud, duress, or material
mistake of fact. [If, at any time before or after a petition is filed, a
signator dies or becomes mentally ill or  cannot  be  found  within  the
state,  neither  the proceeding nor the right to commence the proceeding
shall abate but may be commenced or continued  by  any  of  the  persons
authorized  by  this article to commence a paternity proceeding.] If the
petitioner proves to the court that the acknowledgment of paternity  was
signed  under  fraud,  duress, or due to a material mistake of fact, the
court shall THEN order genetic marker tests or DNA tests for the  deter-
mination of the child's paternity. No such test shall be ordered, howev-
er,  upon  a  written  finding  by  the court that it is not in the best
interests of the child on the basis of res judicata, equitable estoppel,
or the presumption of legitimacy of a child born to a married woman.  If
the court determines, following the test, that the person who signed the
acknowledgment  is the father of the child, the court shall make a find-
ing of paternity and enter an order of filiation. If  the  court  deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  (V)  IF,  AT ANY TIME BEFORE OR AFTER A SIGNATORY HAS FILED A PETITION
TO VACATE AN ACKNOWLEDGMENT OF PATERNITY PURSUANT TO  THIS  SUBDIVISION,
THE SIGNATORY DIES OR BECOMES MENTALLY ILL OR CANNOT BE FOUND WITHIN THE
STATE,  NEITHER  THE PROCEEDING NOR THE RIGHT TO COMMENCE THE PROCEEDING
SHALL ABATE BUT MAY BE COMMENCED OR CONTINUED  BY  ANY  OF  THE  PERSONS
AUTHORIZED BY THIS ARTICLE TO COMMENCE A PATERNITY PROCEEDING.
  (c)  Neither [signator's] SIGNATORY'S legal obligations, including the
obligation for child support arising from  the  acknowledgment,  may  be

S. 4644--A                          3

suspended  during  the  challenge  to the acknowledgment except for good
cause as the court may find. If the court vacates the acknowledgment  of
paternity,  the  court  shall immediately provide a copy of the order to
the  registrar of the district in which the child's birth certificate is
filed and also to the putative father registry operated by  the  depart-
ment  of social services pursuant to section three hundred seventy-two-c
of the social services law. In addition, if the mother of the child  who
is  the  subject  of  the  acknowledgment is in receipt of child support
services pursuant to title six-A of article three of the social services
law, the court shall immediately provide a copy  of  the  order  to  the
child  support  enforcement  unit  of  the social services district that
provides the mother with such services.
  S 2. Subdivisions 1 and 2 of section 4135-b of the public health  law,
subdivision  1 as added by chapter 59 of the laws of 1993, paragraph (a)
of subdivision 1 as amended by chapter 214 of the laws of 1998, subdivi-
sion 2 as amended by chapter 170 of the laws of 1994 and  paragraph  (b)
of  subdivision  2  as  amended  by chapter 398 of the laws of 1997, are
amended to read as follows:
  1. (a) Immediately preceding or following the in-hospital birth  of  a
child  to  an  unmarried woman, the person in charge of such hospital or
his or her designated representative shall provide to the child's mother
and putative father, if such father is readily identifiable  and  avail-
able,  the  documents and written instructions necessary for such mother
and putative father to complete an acknowledgment of paternity witnessed
by two persons not related to the  signatory.  Such  acknowledgment,  if
signed  by  both  parties,  at  any time following the birth of a child,
shall be filed with the registrar at the same time at which the  certif-
icate  of live birth is filed, if possible, or anytime thereafter. Noth-
ing herein shall be deemed to require  the  person  in  charge  of  such
hospital  or his or her designee to seek out or otherwise locate a puta-
tive father who is not readily identifiable or available.  The  acknowl-
edgment  shall be executed on a form provided by the commissioner devel-
oped in consultation with the appropriate commissioner of the department
of family assistance, which shall include the social security number  of
the  mother and of the putative father and provide in plain language (i)
a statement by the mother consenting to the acknowledgment of  paternity
and  a  statement  that the putative father is the only possible father,
(ii) a statement by the putative father that he is the biological father
of the child, and (iii) a statement that the signing of the  acknowledg-
ment  of  paternity by both parties shall have the same force and effect
as an order of filiation entered after a court hearing  by  a  court  of
competent  jurisdiction,  including an obligation to provide support for
the child except that, only if filed with the registrar of the  district
in  which  the birth certificate has been filed, will the acknowledgment
have such force and effect with respect to inheritance rights.
  (B) Prior to the execution of  an  acknowledgment  of  paternity,  the
mother  and  the  putative father shall be provided orally, which may be
through the use of audio or video equipment, and in  writing  with  such
information  as  is  required  pursuant  to this section with respect to
their rights and the consequences of signing a voluntary  acknowledgment
of paternity including, but not limited to[,]:
  (I)  that  the signing of the acknowledgment of paternity shall estab-
lish the paternity of the child and shall have the same force and effect
as an order of paternity or filiation issued by  a  court  of  competent
jurisdiction  establishing  the  duty of both parties to provide support
for the child;

S. 4644--A                          4

  (II) that if such an acknowledgment is not made, the  putative  father
can  be  held liable for support only if the family court, after a hear-
ing, makes an order declaring that the putative father is the father  of
the  child whereupon the court may make an order of support which may be
retroactive to the birth of the child;
  (III) that if made a respondent in a proceeding to establish paternity
the  putative  father  has a right to free legal representation if indi-
gent;
  (IV) that the putative father has a right to a genetic marker test  or
to a DNA test when available;
  (V)  that  by executing the acknowledgment, the putative father waives
his right to a hearing, to which he would otherwise be entitled, on  the
issue of paternity;
  (VI)  that  a  copy  of the acknowledgment of paternity shall be filed
with the putative father registry  pursuant  to  section  three  hundred
seventy-two-c  of  the  social  services  law,  and that such filing may
establish the child's right to  inheritance  from  the  putative  father
pursuant  to  clause (B) of subparagraph two of paragraph (a) of section
4-1.2 of the estates, powers and trusts law;
  (VII) that, if such acknowledgment is filed with the registrar of  the
district in which the birth certificate has been filed, such acknowledg-
ment will establish inheritance rights from the putative father pursuant
to  clause  (A) of subparagraph two of paragraph (a) of section 4-1.2 of
the estates, powers and trusts law;
  (VIII) that no further  judicial  or  administrative  proceedings  are
required  to  [ratio] RATIFY an unchallenged acknowledgment of paternity
provided, however, that [both the putative father and the mother of  the
child]:
  (A)  A  SIGNATORY  TO AN ACKNOWLEDGMENT OF PATERNITY, WHO HAD ATTAINED
THE AGE OF EIGHTEEN AT THE TIME  OF  EXECUTION  OF  THE  ACKNOWLEDGMENT,
SHALL have the right to rescind the acknowledgment within the earlier of
sixty days from the date of signing the acknowledgment or the date of an
administrative  or a judicial proceeding (including, BUT NOT LIMITED TO,
a proceeding to establish a support order)  relating  to  the  child  in
which  [either]  THE signatory is a party[;], PROVIDED that the "date of
an administrative or a judicial proceeding" shall be the date  by  which
the respondent is required to answer the petition;
  (B)  A  SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO HAD NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT, SHALL HAVE THE RIGHT TO  RESCIND  THE  ACKNOWLEDGMENT  WITHIN  THE
EARLIER  OF  SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE OF EIGH-
TEEN YEARS OR SIXTY DAYS OF  THE  DATE  ON  WHICH  THE  SIGNATORY  FIRST
APPEARS  FOR  A  JUDICIAL  PROCEEDING  (INCLUDING, BUT NOT LIMITED TO, A
PROCEEDING  TO  ESTABLISH  A  SUPPORT  ORDER)  RELATING  TO  THE  CHILD;
PROVIDED,  HOWEVER,  THAT  THE  SIGNATORY MUST HAVE BEEN ADVISED AT SUCH
PROCEEDING OF HIS OR HER RIGHT TO FILE A PETITION TO VACATE THE ACKNOWL-
EDGMENT WITHIN SIXTY DAYS OF THE DATE OF SUCH PROCEEDING;
  (IX) that after the expiration of [sixty days of the execution of  the
acknowledgment]  THE  TIME  LIMITS  SET  FORTH IN CLAUSES (A) AND (B) OF
SUBPARAGRAPH (VIII) OF THIS PARAGRAPH, [either  signatory]  ANY  OF  THE
SIGNATORIES  may challenge the acknowledgment of paternity in court only
on the basis of fraud, duress, or material mistake  of  fact,  with  the
burden of proof on the party challenging the voluntary acknowledgment;
  (X)  that  [they]  THE  PUTATIVE FATHER AND MOTHER may wish to consult
with [an attorney] ATTORNEYS before executing  the  acknowledgment;  and

S. 4644--A                          5

that  they  have  the  right to seek legal representation and supportive
services including counseling regarding such acknowledgment;
  (XI)  that  the  acknowledgment  of paternity may be the basis for the
putative father establishing custody and visitation rights to the  child
[; if the acknowledgment is signed, it may be the basis] AND for requir-
ing the putative father's consent prior to an adoption proceeding;
  (XII)  THAT  the mother's refusal to sign the acknowledgment shall not
be deemed a failure to  cooperate  in  establishing  paternity  for  the
child; and
  (XIII)  THAT  the child may bear the last name of either parent, which
name shall not affect the legal status of the child.
In addition, the governing body  of  such  hospital  shall  insure  that
appropriate  staff  shall  provide  to  the  child's mother and putative
father, prior to the mother's discharge from the hospital, the  opportu-
nity  to  speak with hospital staff to obtain clarifying information and
answers to their questions about paternity establishment, and shall also
provide the telephone number of the local support collection unit.
  [(b)] (C) Within ten days after receiving the  certificate  of  birth,
the registrar shall furnish without charge to each parent or guardian of
the  child  or  to  the mother at the address designated by her for that
purpose, a certified copy of the certificate of birth and,  if  applica-
ble, a certified copy of the written acknowledgment of paternity. If the
mother  is  in receipt of child support enforcement services pursuant to
title six-A of article three of the social services law,  the  registrar
also shall furnish without charge a certified copy of the certificate of
birth and, if applicable, a certified copy of the written acknowledgment
of  paternity to the social services district of the county within which
the mother resides.
  2. (a) When a child's paternity is acknowledged  voluntarily  pursuant
to  section  one hundred eleven-k of the social services law, the social
services official  shall  file  the  executed  acknowledgment  with  the
registrar  of  the district in which the birth occurred and in which the
birth certificate  has been filed.
  (b) Where a child's paternity has not  been  acknowledged  voluntarily
pursuant  to  paragraph  (a) of subdivision one of this section or para-
graph (a) of this subdivision,  the  child's  mother  and  the  putative
father  may voluntarily acknowledge a child's paternity pursuant to this
paragraph by signing the acknowledgment of paternity [provided, however,
that both the putative father and the mother of the child].
  (C) A SIGNATORY TO AN ACKNOWLEDGMENT OF PATERNITY,  WHO  HAS  ATTAINED
THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDGMENT SHALL
have the right to rescind the acknowledgment within the earlier of sixty
days  from  the  date  of  signing  the acknowledgment or the date of an
administrative or a judicial proceeding (including, BUT NOT LIMITED  TO,
a  proceeding  to  establish  a  support order) relating to the child in
which either signatory is a party; PROVIDED that for  purposes  of  this
section,  the "date of an administrative or a judicial proceeding" shall
be the date by which the respondent is required to answer the petition[;
that after].
  (D) A SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO  HAS  NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT,  SHALL  HAVE  THE  RIGHT  TO RESCIND THE ACKNOWLEDGMENT WITHIN THE
EARLIER OF SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE  OF  EIGH-
TEEN  YEARS  OR  SIXTY  DAYS  OF  THE  DATE ON WHICH THE SIGNATORY FIRST
APPEARS FOR A JUDICIAL PROCEEDING (INCLUDING,  BUT  NOT  LIMITED  TO,  A
PROCEEDING  TO ESTABLISH A SUPPORT ORDER) RELATING TO THE CHILD IN WHICH

S. 4644--A                          6

THE SIGNATORY IS A PARTY; PROVIDED, HOWEVER,  THAT  THE  SIGNATORY  MUST
HAVE BEEN ADVISED AT SUCH PROCEEDING OF HIS OR HER RIGHT TO FILE A PETI-
TION  TO VACATE THE ACKNOWLEDGMENT WITHIN SIXTY DAYS OF THE DATE OF SUCH
PROCEEDING.
  (E)  AFTER  the  expiration  of  [sixty  days  of the execution of the
acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (C) AND  (D)  OF
THIS SUBDIVISION, [either signator] ANY OF THE SIGNATORIES may challenge
the  acknowledgment  of  paternity  in court only on the basis of fraud,
duress, or material mistake of fact, with the burden  of  proof  on  the
party challenging the voluntary acknowledgment. The acknowledgment shall
have full force and effect once so signed. The original or a copy of the
[acknowledgement]  ACKNOWLEDGMENT  shall  be filed with the registrar of
the district in which the birth certificate has been filed.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

S4644B - Bill Details

See Assembly Version of this Bill:
A7375
Law Section:
Family Court Act
Laws Affected:
Amd §516-a, Fam Ct Act; amd §4135-b, Pub Health L

S4644B - Bill Texts

view summary

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.

view sponsor memo
BILL NUMBER:S4644B

TITLE OF BILL: An act to amend the family court act and the public
health law, in relation to acknowledgments of paternity executed by
juveniles under the age of eighteen

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

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); 45
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.

Traditional concepts of contract law afford guidance and, indeed, in
the absence of a contrary statute, arguably apply in such cases.
Contracts executed by minors have long been deemed voidable up to a
reasonable time after the minor reaches the age of majority, both
nationally and in New York State. See, e.g., De Vito v. City of
Mechanicville, 251 A.D. 514 (3rd Dept., 1937); Sternlieb v. Normandie
Nat. Securities Corp., 263 N.Y. 245 (1934); Joseph v. Schatzkin, 259
N.Y. 241 (1932); Casey v. Kastel, 237 N.Y. 305 (1924); Slocum v.
Hooker, 13 Barb. 536 (Sup. Ct., N.Y.Co., 1852); Aetna Cas. & Sur. Co.
v. Duncan, 972 F.2d 523 (3d Cir. 1992); 5 Williston on Contracts § 9:5
(4th ed., database updated 2012). Section 3-101 of the General


Obligations Law sets the age of majority at 18 with respect to the
voidability of contracts executed by minors.

Consistent with these long-standing principles and with the General
Obligations Law, we propose this measure to permit a signatory to an
acknowledgment of paternity to file a petition to vacate it within 60
days of the signatory's attaining 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, that is,
within 60 days of the deadline for respondent to answer a petition,
including a petition to establish a child support order. In light of
the signatory's minority, the measure provides an additional
protection, i.e., that the "signatory must have been advised 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."

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 create a fiscal burden for 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 far the cost of
such tests."

This measure thus resolves the apparent contradiction between the
deadlines in current Family Court Act § 516-a and Public Health Law
4135-b for filing petitions to vacate paternity acknowledgments and
the voidability of contractual obligations undertaken by minors under
long-standing precedents and the General Obligations Law. An
acknowledgment of paternity may constitute the basis for establishing
an order of child support lasting until the signatory's infant turns
21, i.e., a 21-year contract requiring payment of substantial sums of
money. Just as contracts executed by minors are voidable, so, too,
there should be an avenue available to seek vacatur of acknowledgments
of paternity executed by minors. 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.

2013 Legislative History:

OCA 2013-9RR Senate 4644-A (Sen. Bonacic) (amended & recommitted to
Judiciary)

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4644--B

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 16, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  committee  discharged,  bill  amended,  ordered  reprinted as
  amended and recommitted to said committee

AN ACT to amend the family court act  and  the  public  health  law,  in
  relation  to  acknowledgments of paternity executed by juveniles under
  the age of eighteen

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivisions  (b)  and (c) of section 516-a of the family
court act, as amended by chapter 462 of the laws of 2007, are amended to
read as follows:
  (b) (i) [An] WHERE A  SIGNATORY  TO  AN  acknowledgment  of  paternity
executed pursuant to section one hundred eleven-k of the social services
law  or  section  four  thousand one hundred thirty-five-b of the public
health law HAD ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION  OF
THE ACKNOWLEDGMENT, THE SIGNATORY may [be rescinded] SEEK TO RESCIND THE
ACKNOWLEDGMENT  by  [either  signator's] filing [of] a petition with the
court to vacate the acknowledgment within the earlier of sixty  days  of
the  date of signing the acknowledgment or the date of an administrative
or a judicial proceeding (including, BUT NOT LIMITED TO, a proceeding to
establish a support order) relating to the child in which [either signa-
tor] THE SIGNATORY is a party. [If, at any time before or after a  peti-
tion  is  filed,  a  signator  dies or becomes mentally ill or cannot be
found within the state, neither the proceeding nor the right to commence
the proceeding shall abate but may be commenced or continued by  any  of
the  persons authorized by this article to commence a paternity proceed-
ing.] For purposes of this section, the "date of an administrative or  a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09330-06-3

S. 4644--B                          2

judicial  proceeding"  shall  be  the  date  by  which the respondent is
required to answer the petition. [The]
  (II)  WHERE  A  SIGNATORY  TO  AN ACKNOWLEDGMENT OF PATERNITY EXECUTED
PURSUANT TO SECTION ONE HUNDRED ELEVEN-K OF THE SOCIAL SERVICES  LAW  OR
SECTION FOUR THOUSAND ONE HUNDRED THIRTY-FIVE-B OF THE PUBLIC HEALTH LAW
HAD  NOT  ATTAINED  THE  AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE
ACKNOWLEDGMENT, THE SIGNATORY MAY SEEK TO RESCIND THE ACKNOWLEDGMENT  BY
FILING A PETITION WITH THE COURT TO VACATE THE ACKNOWLEDGMENT WITHIN THE
EARLIER  OF  SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE OF EIGH-
TEEN YEARS OR SIXTY DAYS OF THE DATE ON WHICH THE RESPONDENT IS REQUIRED
TO ANSWER A PETITION (INCLUDING, BUT  NOT  LIMITED  TO,  A  PETITION  TO
ESTABLISH  A SUPPORT ORDER) RELATING TO THE CHILD IN WHICH THE SIGNATORY
IS A PARTY; PROVIDED, HOWEVER, THAT THE SIGNATORY MUST HAVE BEEN ADVISED
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.
  (III)  WHERE  A  PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY HAS
BEEN FILED IN ACCORDANCE WITH PARAGRAPH (I) OR (II) OF THIS SUBDIVISION,
THE court shall order genetic marker tests or DNA tests for the determi-
nation of the child's paternity. No such test shall be ordered, however,
upon a written finding by the court that it is not in the best interests
of the child on the basis of res judicata, equitable  estoppel,  or  the
presumption  of  legitimacy  of  a child born to a married woman. If the
court determines, following the test, that the  person  who  signed  the
acknowledgment  is the father of the child, the court shall make a find-
ing of paternity and enter an order of filiation. If  the  court  deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  [(ii)]  (IV)  After  the expiration of [sixty days of the execution of
the acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (I) AND (II)
OF THIS SUBDIVISION, [either signator] ANY  OF  THE  SIGNATORIES  TO  AN
ACKNOWLEDGMENT  OF PATERNITY may challenge the acknowledgment [of pater-
nity] in court by  alleging  and  proving  fraud,  duress,  or  material
mistake of fact. [If, at any time before or after a petition is filed, a
signator  dies  or  becomes  mentally  ill or cannot be found within the
state, neither the proceeding nor the right to commence  the  proceeding
shall  abate  but  may  be  commenced or continued by any of the persons
authorized by this article to commence a paternity proceeding.]  If  the
petitioner  proves to the court that the acknowledgment of paternity was
signed under fraud, duress, or due to a material mistake  of  fact,  the
court  shall THEN order genetic marker tests or DNA tests for the deter-
mination of the child's paternity. No such test shall be ordered, howev-
er, upon a written finding by the court that  it  is  not  in  the  best
interests of the child on the basis of res judicata, equitable estoppel,
or  the presumption of legitimacy of a child born to a married woman. If
the court determines, following the test, that the person who signed the
acknowledgment is the father of the child, the court shall make a  find-
ing  of  paternity  and enter an order of filiation. If the court deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  (V) IF, AT ANY TIME BEFORE OR AFTER A SIGNATORY HAS FILED  A  PETITION
TO  VACATE  AN ACKNOWLEDGMENT OF PATERNITY PURSUANT TO THIS SUBDIVISION,
THE SIGNATORY DIES OR BECOMES MENTALLY ILL OR CANNOT BE FOUND WITHIN THE
STATE, NEITHER THE PROCEEDING NOR THE RIGHT TO COMMENCE  THE  PROCEEDING
SHALL  ABATE  BUT  MAY  BE  COMMENCED OR CONTINUED BY ANY OF THE PERSONS
AUTHORIZED BY THIS ARTICLE TO COMMENCE A PATERNITY PROCEEDING.

S. 4644--B                          3

  (c) Neither [signator's] SIGNATORY'S legal obligations, including  the
obligation  for  child  support  arising from the acknowledgment, may be
suspended during the challenge to the  acknowledgment  except  for  good
cause  as the court may find. If the court vacates the acknowledgment of
paternity,  the  court  shall immediately provide a copy of the order to
the registrar of the district in which the child's birth certificate  is
filed  and  also to the putative father registry operated by the depart-
ment of social services pursuant to section three hundred  seventy-two-c
of  the social services law. In addition, if the mother of the child who
is the subject of the acknowledgment is  in  receipt  of  child  support
services pursuant to title six-A of article three of the social services
law,  the  court  shall  immediately  provide a copy of the order to the
child support enforcement unit of  the  social  services  district  that
provides the mother with such services.
  S  2. Subdivisions 1 and 2 of section 4135-b of the public health law,
subdivision 1 as added by chapter 59 of the laws of 1993, paragraph  (a)
of subdivision 1 as amended by chapter 214 of the laws of 1998, subdivi-
sion  2  as amended by chapter 170 of the laws of 1994 and paragraph (b)
of subdivision 2 as amended by chapter 398 of  the  laws  of  1997,  are
amended to read as follows:
  1.  (a)  Immediately preceding or following the in-hospital birth of a
child to an unmarried woman, the person in charge of  such  hospital  or
his or her designated representative shall provide to the child's mother
and  putative  father, if such father is readily identifiable and avail-
able, the documents and written instructions necessary for  such  mother
and putative father to complete an acknowledgment of paternity witnessed
by  two  persons  not  related to the signatory. Such acknowledgment, if
signed by both parties, at any time following  the  birth  of  a  child,
shall  be filed with the registrar at the same time at which the certif-
icate of live birth is filed, if possible, or anytime thereafter.  Noth-
ing  herein  shall  be  deemed  to  require the person in charge of such
hospital or his or her designee to seek out or otherwise locate a  puta-
tive  father  who is not readily identifiable or available. The acknowl-
edgment shall be executed on a form provided by the commissioner  devel-
oped in consultation with the appropriate commissioner of the department
of  family assistance, which shall include the social security number of
the mother and of the putative father and provide in plain language  (i)
a  statement by the mother consenting to the acknowledgment of paternity
and a statement that the putative father is the  only  possible  father,
(ii) a statement by the putative father that he is the biological father
of  the child, and (iii) a statement that the signing of the acknowledg-
ment of paternity by both parties shall have the same force  and  effect
as  an  order  of  filiation entered after a court hearing by a court of
competent jurisdiction, including an obligation to provide  support  for
the  child except that, only if filed with the registrar of the district
in which the birth certificate has been filed, will  the  acknowledgment
have such force and effect with respect to inheritance rights.
  (B)  Prior  to  the  execution  of an acknowledgment of paternity, the
mother and the putative father shall be provided orally,  which  may  be
through  the  use  of audio or video equipment, and in writing with such
information as is required pursuant to  this  section  with  respect  to
their  rights and the consequences of signing a voluntary acknowledgment
of paternity including, but not limited to[,]:
  (I) that the signing of the acknowledgment of paternity  shall  estab-
lish the paternity of the child and shall have the same force and effect
as  an  order  of  paternity or filiation issued by a court of competent

S. 4644--B                          4

jurisdiction establishing the duty of both parties  to  provide  support
for the child;
  (II)  that  if such an acknowledgment is not made, the putative father
can be held liable for support only if the family court, after  a  hear-
ing,  makes an order declaring that the putative father is the father of
the child whereupon the court may make an order of support which may  be
retroactive to the birth of the child;
  (III) that if made a respondent in a proceeding to establish paternity
the  putative  father  has a right to free legal representation if indi-
gent;
  (IV) that the putative father has a right to a genetic marker test  or
to a DNA test when available;
  (V)  that  by executing the acknowledgment, the putative father waives
his right to a hearing, to which he would otherwise be entitled, on  the
issue of paternity;
  (VI)  that  a  copy  of the acknowledgment of paternity shall be filed
with the putative father registry  pursuant  to  section  three  hundred
seventy-two-c  of  the  social  services  law,  and that such filing may
establish the child's right to  inheritance  from  the  putative  father
pursuant  to  clause (B) of subparagraph two of paragraph (a) of section
4-1.2 of the estates, powers and trusts law;
  (VII) that, if such acknowledgment is filed with the registrar of  the
district in which the birth certificate has been filed, such acknowledg-
ment will establish inheritance rights from the putative father pursuant
to  clause  (A) of subparagraph two of paragraph (a) of section 4-1.2 of
the estates, powers and trusts law;
  (VIII) that no further  judicial  or  administrative  proceedings  are
required  to  [ratio] RATIFY an unchallenged acknowledgment of paternity
provided, however, that [both the putative father and the mother of  the
child]:
  (A)  A  SIGNATORY  TO AN ACKNOWLEDGMENT OF PATERNITY, WHO HAD ATTAINED
THE AGE OF EIGHTEEN AT THE TIME  OF  EXECUTION  OF  THE  ACKNOWLEDGMENT,
SHALL have the right to rescind the acknowledgment within the earlier of
sixty days from the date of signing the acknowledgment or the date of an
administrative  or a judicial proceeding (including, BUT NOT LIMITED TO,
a proceeding to establish a support order)  relating  to  the  child  in
which  [either]  THE signatory is a party[;], PROVIDED that the "date of
an administrative or a judicial proceeding" shall be the date  by  which
the respondent is required to answer the petition;
  (B)  A  SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO HAD NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT, SHALL HAVE THE RIGHT TO  RESCIND  THE  ACKNOWLEDGMENT  WITHIN  THE
EARLIER  OF  SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE OF EIGH-
TEEN YEARS OR SIXTY DAYS OF THE DATE ON WHICH THE RESPONDENT IS REQUIRED
TO ANSWER A PETITION (INCLUDING, BUT  NOT  LIMITED  TO,  A  PETITION  TO
ESTABLISH  A  SUPPORT  ORDER)  RELATING TO THE CHILD; PROVIDED, HOWEVER,
THAT THE SIGNATORY MUST HAVE BEEN ADVISED 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;
  (IX) that after the expiration of [sixty days of the execution of  the
acknowledgment]  THE  TIME  LIMITS  SET  FORTH IN CLAUSES (A) AND (B) OF
SUBPARAGRAPH (VIII) OF THIS PARAGRAPH, [either  signatory]  ANY  OF  THE
SIGNATORIES  may challenge the acknowledgment of paternity in court only
on the basis of fraud, duress, or material mistake  of  fact,  with  the
burden of proof on the party challenging the voluntary acknowledgment;

S. 4644--B                          5

  (X)  that  [they]  THE  PUTATIVE FATHER AND MOTHER may wish to consult
with [an attorney] ATTORNEYS before executing  the  acknowledgment;  and
that  they  have  the  right to seek legal representation and supportive
services including counseling regarding such acknowledgment;
  (XI)  that  the  acknowledgment  of paternity may be the basis for the
putative father establishing custody and visitation rights to the  child
[; if the acknowledgment is signed, it may be the basis] AND for requir-
ing the putative father's consent prior to an adoption proceeding;
  (XII)  THAT  the mother's refusal to sign the acknowledgment shall not
be deemed a failure to  cooperate  in  establishing  paternity  for  the
child; and
  (XIII)  THAT  the child may bear the last name of either parent, which
name shall not affect the legal status of the child.
In addition, the governing body  of  such  hospital  shall  insure  that
appropriate  staff  shall  provide  to  the  child's mother and putative
father, prior to the mother's discharge from the hospital, the  opportu-
nity  to  speak with hospital staff to obtain clarifying information and
answers to their questions about paternity establishment, and shall also
provide the telephone number of the local support collection unit.
  [(b)] (C) Within ten days after receiving the  certificate  of  birth,
the registrar shall furnish without charge to each parent or guardian of
the  child  or  to  the mother at the address designated by her for that
purpose, a certified copy of the certificate of birth and,  if  applica-
ble, a certified copy of the written acknowledgment of paternity. If the
mother  is  in receipt of child support enforcement services pursuant to
title six-A of article three of the social services law,  the  registrar
also shall furnish without charge a certified copy of the certificate of
birth and, if applicable, a certified copy of the written acknowledgment
of  paternity to the social services district of the county within which
the mother resides.
  2. (a) When a child's paternity is acknowledged  voluntarily  pursuant
to  section  one hundred eleven-k of the social services law, the social
services official  shall  file  the  executed  acknowledgment  with  the
registrar  of  the district in which the birth occurred and in which the
birth certificate  has been filed.
  (b) Where a child's paternity has not  been  acknowledged  voluntarily
pursuant  to  paragraph  (a) of subdivision one of this section or para-
graph (a) of this subdivision,  the  child's  mother  and  the  putative
father  may voluntarily acknowledge a child's paternity pursuant to this
paragraph by signing the acknowledgment of paternity [provided, however,
that both the putative father and the mother of the child].
  (C) A SIGNATORY TO AN ACKNOWLEDGMENT OF PATERNITY,  WHO  HAS  ATTAINED
THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDGMENT SHALL
have the right to rescind the acknowledgment within the earlier of sixty
days  from  the  date  of  signing  the acknowledgment or the date of an
administrative or a judicial proceeding (including, BUT NOT LIMITED  TO,
a  proceeding  to  establish  a  support order) relating to the child in
which either signatory is a party; PROVIDED that for  purposes  of  this
section,  the "date of an administrative or a judicial proceeding" shall
be the date by which the respondent is required to answer the petition[;
that after].
  (D) A SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO  HAS  NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT,  SHALL  HAVE  THE  RIGHT  TO RESCIND THE ACKNOWLEDGMENT WITHIN THE
EARLIER OF SIXTY DAYS OF THE SIGNATORY'S ATTAINING OF THE AGE  OF  EIGH-
TEEN YEARS OR SIXTY DAYS OF THE DATE ON WHICH THE RESPONDENT IS REQUIRED

S. 4644--B                          6

TO  ANSWER  A  PETITION  (INCLUDING,  BUT  NOT LIMITED TO, A PETITION TO
ESTABLISH A SUPPORT ORDER) RELATING TO THE CHILD IN WHICH THE  SIGNATORY
IS A PARTY; PROVIDED, HOWEVER, THAT THE SIGNATORY MUST HAVE BEEN ADVISED
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.
  (E) AFTER the expiration of  [sixty  days  of  the  execution  of  the
acknowledgment]  THE  TIME LIMITS SET FORTH IN PARAGRAPHS (C) AND (D) OF
THIS SUBDIVISION, [either signator] ANY OF THE SIGNATORIES may challenge
the acknowledgment of paternity in court only on  the  basis  of  fraud,
duress,  or  material  mistake  of fact, with the burden of proof on the
party challenging the voluntary acknowledgment. The acknowledgment shall
have full force and effect once so signed. The original or a copy of the
[acknowledgement] ACKNOWLEDGMENT shall be filed with  the  registrar  of
the district in which the birth certificate has been filed.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

S4644C (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7375
Law Section:
Family Court Act
Laws Affected:
Amd §516-a, Fam Ct Act; amd §4135-b, Pub Health L

S4644C (ACTIVE) - Bill Texts

view summary

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.

view sponsor memo
BILL NUMBER:S4644C REVISED MEMO 06/05/2013

TITLE OF BILL: An act to amend the family court act and the public
health law, in relation to acknowledgments of paternity executed by
juveniles under the age of eighteen

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

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)

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4644--C

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 16, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  committee  discharged,  bill  amended,  ordered  reprinted as
  amended and recommitted to said  committee  --  committee  discharged,
  bill  amended,  ordered  reprinted  as amended and recommitted to said
  committee

AN ACT to amend the family court act  and  the  public  health  law,  in
  relation  to  acknowledgments of paternity executed by juveniles under
  the age of eighteen

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivisions  (b)  and (c) of section 516-a of the family
court act, as amended by chapter 462 of the laws of 2007, are amended to
read as follows:
  (b) (i) [An] WHERE A  SIGNATORY  TO  AN  acknowledgment  of  paternity
executed pursuant to section one hundred eleven-k of the social services
law  or  section  four  thousand one hundred thirty-five-b of the public
health law HAD ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION  OF
THE ACKNOWLEDGMENT, THE SIGNATORY may [be rescinded] SEEK TO RESCIND THE
ACKNOWLEDGMENT  by  [either  signator's] filing [of] a petition with the
court to vacate the acknowledgment within the earlier of sixty  days  of
the  date of signing the acknowledgment or the date of an administrative
or a judicial proceeding (including, BUT NOT LIMITED TO, a proceeding to
establish a support order) relating to the child in which [either signa-
tor] THE SIGNATORY is a party. [If, at any time before or after a  peti-
tion  is  filed,  a  signator  dies or becomes mentally ill or cannot be
found within the state, neither the proceeding nor the right to commence
the proceeding shall abate but may be commenced or continued by  any  of
the  persons authorized by this article to commence a paternity proceed-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09330-08-3

S. 4644--C                          2

ing.] For purposes of this section, the "date of an administrative or  a
judicial  proceeding"  shall  be  the  date  by  which the respondent is
required to answer the petition. [The]
  (II)  WHERE  A  SIGNATORY  TO  AN ACKNOWLEDGMENT OF PATERNITY EXECUTED
PURSUANT TO SECTION ONE HUNDRED ELEVEN-K OF THE SOCIAL SERVICES  LAW  OR
SECTION FOUR THOUSAND ONE HUNDRED THIRTY-FIVE-B OF THE PUBLIC HEALTH LAW
HAD  NOT  ATTAINED  THE  AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE
ACKNOWLEDGMENT, THE SIGNATORY MAY SEEK TO RESCIND THE ACKNOWLEDGMENT  BY
FILING A PETITION WITH THE COURT TO VACATE THE ACKNOWLEDGMENT ANYTIME UP
TO  SIXTY DAYS AFTER THE SIGNATORY'S ATTAINING THE AGE OF EIGHTEEN YEARS
OR SIXTY DAYS AFTER THE DATE ON WHICH  THE  RESPONDENT  IS  REQUIRED  TO
ANSWER  A  PETITION (INCLUDING, BUT NOT LIMITED TO, A PETITION TO ESTAB-
LISH A SUPPORT ORDER) RELATING TO THE CHILD IN WHICH THE SIGNATORY IS  A
PARTY,  WHICHEVER IS EARLIER; PROVIDED, HOWEVER, THAT THE SIGNATORY MUST
HAVE BEEN ADVISED AT SUCH PROCEEDING OF HIS OR HER RIGHT TO FILE A PETI-
TION TO VACATE THE ACKNOWLEDGMENT WITHIN SIXTY DAYS OF THE DATE OF  SUCH
PROCEEDING.
  (III)  WHERE  A  PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY HAS
BEEN FILED IN ACCORDANCE WITH PARAGRAPH (I) OR (II) OF THIS SUBDIVISION,
THE court shall order genetic marker tests or DNA tests for the determi-
nation of the child's paternity. No such test shall be ordered, however,
upon a written finding by the court that it is not in the best interests
of the child on the basis of res judicata, equitable  estoppel,  or  the
presumption  of  legitimacy  of  a child born to a married woman. If the
court determines, following the test, that the  person  who  signed  the
acknowledgment  is the father of the child, the court shall make a find-
ing of paternity and enter an order of filiation. If  the  court  deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  [(ii)]  (IV)  After  the expiration of [sixty days of the execution of
the acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (I) AND (II)
OF THIS SUBDIVISION, [either signator] ANY  OF  THE  SIGNATORIES  TO  AN
ACKNOWLEDGMENT  OF PATERNITY may challenge the acknowledgment [of pater-
nity] in court by  alleging  and  proving  fraud,  duress,  or  material
mistake of fact. [If, at any time before or after a petition is filed, a
signator  dies  or  becomes  mentally  ill or cannot be found within the
state, neither the proceeding nor the right to commence  the  proceeding
shall  abate  but  may  be  commenced or continued by any of the persons
authorized by this article to commence a paternity proceeding.]  If  the
petitioner  proves to the court that the acknowledgment of paternity was
signed under fraud, duress, or due to a material mistake  of  fact,  the
court  shall THEN order genetic marker tests or DNA tests for the deter-
mination of the child's paternity. No such test shall be ordered, howev-
er, upon a written finding by the court that  it  is  not  in  the  best
interests of the child on the basis of res judicata, equitable estoppel,
or  the presumption of legitimacy of a child born to a married woman. If
the court determines, following the test, that the person who signed the
acknowledgment is the father of the child, the court shall make a  find-
ing  of  paternity  and enter an order of filiation. If the court deter-
mines that the person who signed the acknowledgment is not the father of
the child, the acknowledgment shall be vacated.
  (V) IF, AT ANY TIME BEFORE OR AFTER A SIGNATORY HAS FILED  A  PETITION
TO  VACATE  AN ACKNOWLEDGMENT OF PATERNITY PURSUANT TO THIS SUBDIVISION,
THE SIGNATORY DIES OR BECOMES MENTALLY ILL OR CANNOT BE FOUND WITHIN THE
STATE, NEITHER THE PROCEEDING NOR THE RIGHT TO COMMENCE  THE  PROCEEDING

S. 4644--C                          3

SHALL  ABATE  BUT  MAY  BE  COMMENCED OR CONTINUED BY ANY OF THE PERSONS
AUTHORIZED BY THIS ARTICLE TO COMMENCE A PATERNITY PROCEEDING.
  (c)  Neither [signator's] SIGNATORY'S legal obligations, including the
obligation for child support arising from  the  acknowledgment,  may  be
suspended  during  the  challenge  to the acknowledgment except for good
cause as the court may find. If the court vacates the acknowledgment  of
paternity,  the  court  shall immediately provide a copy of the order to
the registrar of the district in which the child's birth certificate  is
filed  and  also to the putative father registry operated by the depart-
ment of social services pursuant to section three hundred  seventy-two-c
of  the social services law. In addition, if the mother of the child who
is the subject of the acknowledgment is  in  receipt  of  child  support
services pursuant to title six-A of article three of the social services
law,  the  court  shall  immediately  provide a copy of the order to the
child support enforcement unit of  the  social  services  district  that
provides the mother with such services.
  S  2. Subdivisions 1 and 2 of section 4135-b of the public health law,
subdivision 1 as added by chapter 59 of the laws of 1993, paragraph  (a)
of subdivision 1 as amended by chapter 214 of the laws of 1998, subdivi-
sion  2  as amended by chapter 170 of the laws of 1994 and paragraph (b)
of subdivision 2 as amended by chapter 398 of  the  laws  of  1997,  are
amended to read as follows:
  1.  (a)  Immediately preceding or following the in-hospital birth of a
child to an unmarried woman, the person in charge of  such  hospital  or
his or her designated representative shall provide to the child's mother
and  putative  father, if such father is readily identifiable and avail-
able, the documents and written instructions necessary for  such  mother
and putative father to complete an acknowledgment of paternity witnessed
by  two  persons  not  related to the signatory. Such acknowledgment, if
signed by both parties, at any time following  the  birth  of  a  child,
shall  be filed with the registrar at the same time at which the certif-
icate of live birth is filed, if possible, or anytime thereafter.  Noth-
ing  herein  shall  be  deemed  to  require the person in charge of such
hospital or his or her designee to seek out or otherwise locate a  puta-
tive  father  who is not readily identifiable or available. The acknowl-
edgment shall be executed on a form provided by the commissioner  devel-
oped in consultation with the appropriate commissioner of the department
of  family assistance, which shall include the social security number of
the mother and of the putative father and provide in plain language  (i)
a  statement by the mother consenting to the acknowledgment of paternity
and a statement that the putative father is the  only  possible  father,
(ii) a statement by the putative father that he is the biological father
of  the child, and (iii) a statement that the signing of the acknowledg-
ment of paternity by both parties shall have the same force  and  effect
as  an  order  of  filiation entered after a court hearing by a court of
competent jurisdiction, including an obligation to provide  support  for
the  child except that, only if filed with the registrar of the district
in which the birth certificate has been filed, will  the  acknowledgment
have such force and effect with respect to inheritance rights.
  (B)  Prior  to  the  execution  of an acknowledgment of paternity, the
mother and the putative father shall be provided orally,  which  may  be
through  the  use  of audio or video equipment, and in writing with such
information as is required pursuant to  this  section  with  respect  to
their  rights and the consequences of signing a voluntary acknowledgment
of paternity including, but not limited to[,]:

S. 4644--C                          4

  (I) that the signing of the acknowledgment of paternity  shall  estab-
lish the paternity of the child and shall have the same force and effect
as  an  order  of  paternity or filiation issued by a court of competent
jurisdiction establishing the duty of both parties  to  provide  support
for the child;
  (II)  that  if such an acknowledgment is not made, the putative father
can be held liable for support only if the family court, after  a  hear-
ing,  makes an order declaring that the putative father is the father of
the child whereupon the court may make an order of support which may  be
retroactive to the birth of the child;
  (III) that if made a respondent in a proceeding to establish paternity
the  putative  father  has a right to free legal representation if indi-
gent;
  (IV) that the putative father has a right to a genetic marker test  or
to a DNA test when available;
  (V)  that  by executing the acknowledgment, the putative father waives
his right to a hearing, to which he would otherwise be entitled, on  the
issue of paternity;
  (VI)  that  a  copy  of the acknowledgment of paternity shall be filed
with the putative father registry  pursuant  to  section  three  hundred
seventy-two-c  of  the  social  services  law,  and that such filing may
establish the child's right to  inheritance  from  the  putative  father
pursuant  to  clause (B) of subparagraph two of paragraph (a) of section
4-1.2 of the estates, powers and trusts law;
  (VII) that, if such acknowledgment is filed with the registrar of  the
district in which the birth certificate has been filed, such acknowledg-
ment will establish inheritance rights from the putative father pursuant
to  clause  (A) of subparagraph two of paragraph (a) of section 4-1.2 of
the estates, powers and trusts law;
  (VIII) that no further  judicial  or  administrative  proceedings  are
required  to  [ratio] RATIFY an unchallenged acknowledgment of paternity
provided, however, that [both the putative father and the mother of  the
child]:
  (A)  A  SIGNATORY  TO AN ACKNOWLEDGMENT OF PATERNITY, WHO HAD ATTAINED
THE AGE OF EIGHTEEN AT THE TIME  OF  EXECUTION  OF  THE  ACKNOWLEDGMENT,
SHALL have the right to rescind the acknowledgment within the earlier of
sixty days from the date of signing the acknowledgment or the date of an
administrative  or a judicial proceeding (including, BUT NOT LIMITED TO,
a proceeding to establish a support order)  relating  to  the  child  in
which  [either]  THE signatory is a party[;], PROVIDED that the "date of
an administrative or a judicial proceeding" shall be the date  by  which
the respondent is required to answer the petition;
  (B)  A  SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO HAD NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT, SHALL HAVE THE RIGHT TO RESCIND THE ACKNOWLEDGMENT ANYTIME  UP  TO
SIXTY  DAYS AFTER THE SIGNATORY'S ATTAINING THE AGE OF EIGHTEEN YEARS OR
SIXTY DAYS AFTER THE DATE ON WHICH THE RESPONDENT IS REQUIRED TO  ANSWER
A  PETITION  (INCLUDING,  BUT  NOT LIMITED TO, A PETITION TO ESTABLISH A
SUPPORT ORDER) RELATING TO THE CHILD, WHICHEVER  IS  EARLIER;  PROVIDED,
HOWEVER, THAT THE SIGNATORY MUST HAVE BEEN ADVISED 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;
  (IX) that after the expiration of [sixty days of the execution of  the
acknowledgment]  THE  TIME  LIMITS  SET  FORTH IN CLAUSES (A) AND (B) OF
SUBPARAGRAPH (VIII) OF THIS PARAGRAPH, [either  signatory]  ANY  OF  THE
SIGNATORIES  may challenge the acknowledgment of paternity in court only

S. 4644--C                          5

on the basis of fraud, duress, or material mistake  of  fact,  with  the
burden of proof on the party challenging the voluntary acknowledgment;
  (X)  that  [they]  THE  PUTATIVE FATHER AND MOTHER may wish to consult
with [an attorney] ATTORNEYS before executing  the  acknowledgment;  and
that  they  have  the  right to seek legal representation and supportive
services including counseling regarding such acknowledgment;
  (XI) that the acknowledgment of paternity may be  the  basis  for  the
putative  father establishing custody and visitation rights to the child
[; if the acknowledgment is signed, it may be the basis] AND for requir-
ing the putative father's consent prior to an adoption proceeding;
  (XII) THAT the mother's refusal to sign the acknowledgment  shall  not
be  deemed  a  failure  to  cooperate  in establishing paternity for the
child; and
  (XIII) THAT the child may bear the last name of either  parent,  which
name shall not affect the legal status of the child.
In  addition,  the  governing  body  of  such hospital shall insure that
appropriate staff shall provide  to  the  child's  mother  and  putative
father,  prior to the mother's discharge from the hospital, the opportu-
nity to speak with hospital staff to obtain clarifying  information  and
answers to their questions about paternity establishment, and shall also
provide the telephone number of the local support collection unit.
  [(b)]  (C)  Within  ten days after receiving the certificate of birth,
the registrar shall furnish without charge to each parent or guardian of
the child or to the mother at the address designated  by  her  for  that
purpose,  a  certified copy of the certificate of birth and, if applica-
ble, a certified copy of the written acknowledgment of paternity. If the
mother is in receipt of child support enforcement services  pursuant  to
title  six-A  of article three of the social services law, the registrar
also shall furnish without charge a certified copy of the certificate of
birth and, if applicable, a certified copy of the written acknowledgment
of paternity to the social services district of the county within  which
the mother resides.
  2.  (a)  When a child's paternity is acknowledged voluntarily pursuant
to section one hundred eleven-k of the social services law,  the  social
services  official  shall  file  the  executed  acknowledgment  with the
registrar of the district in which the birth occurred and in  which  the
birth certificate  has been filed.
  (b)  Where  a  child's paternity has not been acknowledged voluntarily
pursuant to paragraph (a) of subdivision one of this  section  or  para-
graph  (a)  of  this  subdivision,  the  child's mother and the putative
father may voluntarily acknowledge a child's paternity pursuant to  this
paragraph by signing the acknowledgment of paternity [provided, however,
that both the putative father and the mother of the child].
  (C)  A  SIGNATORY  TO AN ACKNOWLEDGMENT OF PATERNITY, WHO HAS ATTAINED
THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDGMENT SHALL
have the right to rescind the acknowledgment within the earlier of sixty
days from the date of signing the  acknowledgment  or  the  date  of  an
administrative  or a judicial proceeding (including, BUT NOT LIMITED TO,
a proceeding to establish a support order)  relating  to  the  child  in
which  either  signatory  is a party; PROVIDED that for purposes of this
section, the "date of an administrative or a judicial proceeding"  shall
be the date by which the respondent is required to answer the petition[;
that after].
  (D)  A  SIGNATORY  TO  AN  ACKNOWLEDGMENT  OF  PATERNITY,  WHO HAS NOT
ATTAINED THE AGE OF EIGHTEEN AT THE TIME OF EXECUTION OF THE ACKNOWLEDG-
MENT, SHALL HAVE THE RIGHT TO RESCIND THE ACKNOWLEDGMENT ANYTIME  UP  TO

S. 4644--C                          6

SIXTY  DAYS AFTER THE SIGNATORY'S ATTAINING THE AGE OF EIGHTEEN YEARS OR
SIXTY DAYS AFTER THE DATE ON WHICH THE RESPONDENT IS REQUIRED TO  ANSWER
A  PETITION  (INCLUDING,  BUT  NOT LIMITED TO, A PETITION TO ESTABLISH A
SUPPORT  ORDER) RELATING TO THE CHILD IN WHICH THE SIGNATORY IS A PARTY,
WHICHEVER IS EARLIER; PROVIDED, HOWEVER, THAT THE  SIGNATORY  MUST  HAVE
BEEN  ADVISED  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.
  (E)  AFTER  the  expiration  of  [sixty  days  of the execution of the
acknowledgment] THE TIME LIMITS SET FORTH IN PARAGRAPHS (C) AND  (D)  OF
THIS SUBDIVISION, [either signator] ANY OF THE SIGNATORIES may challenge
the  acknowledgment  of  paternity  in court only on the basis of fraud,
duress, or material mistake of fact, with the burden  of  proof  on  the
party challenging the voluntary acknowledgment. The acknowledgment shall
have full force and effect once so signed. The original or a copy of the
[acknowledgement]  ACKNOWLEDGMENT  shall  be filed with the registrar of
the district in which the birth certificate has been filed.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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