Senate Bill S8287

2017-2018 Legislative Session

Relates to standing to file paternity petitions, necessary parties in paternity cases and vacating acknowledgments of paternity

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Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
May 31, 2018	advanced to third reading
May 30, 2018	2nd report cal.
May 22, 2018	1st report cal.1323
Apr 26, 2018	referred to judiciary

Votes

- May 22, 2018 - Judiciary Committee Vote
  S8287
  
  Aye
  
  21
  
  Nay
  
  0
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  1
  
  Abstained
  
  0
  - - Judiciary Committee Vote: May 22, 2018
      
      aye (21)
      
      Amedore
      
      Bailey
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Dilan
      
      Hamilton
      
      Hannon
      
      Hoylman-Sigal
      
      Jacobs
      
      Kaminsky
      
      Kavanagh
      
      Lanza
      
      Montgomery
      
      O'Mara
      
      Phillips
      
      Ranzenhofer
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Stavisky
      
      aye wr (1)
      
      LaValle
      
      excused (1)
      
      Croci

2017-S8287 (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Family Court Act
Laws Affected:: Amd §§522, 523, 524, 532 & 542, Fam Ct Act

2017-S8287 (ACTIVE) - Summary

Relates to standing to file paternity petitions, necessary parties in paternity cases and vacating acknowledgments of paternity regarding an alleged father when the mother has signed an acknowledgment of paternity with another man.

2017-S8287 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8287

SPONSOR: BONACIC
 
TITLE OF BILL:  An act to amend the family court act, in relation to
standing to file paternity petitions, necessary parties in paternity
cases and vacating acknowledgments of paternity

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

Section 516-a of the Family Court Act provides for the recognition of
and challenges to an acknowledgment of paternity (AOP) executed pursuant
to section 111-k of the Social Services Law. Section 516-a(a) states
that once executed and filed, an AOP establishes paternity without the
necessity of any further judicial proceeding and is the equivalent of an
order of filiation. Under section 516-a(b), only the signatories to an
AOP have standing to petition to vacate it. This has led to confusion
about whether a non-signatory to the AOP could ever seek a determination
that he is the child's father. Since AOP's are generally executed in
hospitals within days of a child's birth, even a non-signatory petition-
er filing right away in Family Court may find that a legal father
already exists.

This measure would amend the Family Court Act to clarify that a non-sig-
natory to an AOP who comes forward alleging that he is the father has
standing to file a paternity petition notwithstanding the existence of
an AOP signed by another individual. In such a case, the signatory to
the AOP is a necessary party and would have to be named as a respondent.
If appropriate, Family Court would have discretion to order the male
signatory to submit to DNA testing, in addition to the petitioner, moth-
er and child. Finally, the court would be required to issue an order
vacating the AOP where a non-signatory has been adjudged to be the
father, even in the absence of a petition filed by a signatory. It
should be noted that this measure does not change the law on equitable
estoppel, so that an alleged father seeking paternity may still be
barred by equitable estoppel. See, Stephen N. v. Amanda 0., 140 A.D.3d
1223 (3rd Dept., 2016).

This measure is consistent with the holdings of appellate courts that
have stepped in to resolve the ambiguity. In Dwayne J.B. v. Santos H.,
89 A.D.3d 838 (2nd Dept. 2011), the Appellate Division, Second Depart-
ment, determined that a prior AOP "does not serve as an insuperable bar
to a claim of paternity by one who is a stranger to the acknowledgment."
The Third and Fourth Departments have followed suit. See Stephen N. v.
Amanda 0., 140 A.D.3d 1223 (3rd Dept., 2016); Frost v. Wisniewski, 126
A.D.3d 1305 (4th Dept., 2015). However, even in these cases, little
guidance has been given to the Family Courts about what to do should a
non-signatory be declared the father. In the absence of any statutory
authority, many courts are loathe to issue any orders vacating the
underlying AOPs unless a signatory has filed a petition to vacate. In
cases in which one of the signatories did not initiate the proceeding,
they are unlikely to file a petition to vacate the AOP. This measure
would provide needed clarification by amending Family Court Act § 542 to
provide that where the AOP signatory is determined not to be the father,
the AOP must be vacated at the same time that a new order of filiation
is issued.


The recent decision of the Family Court, in Matter of Emily R. v.
Emilio R. and Juan Alexis C., 53 Misc.3d 325 (Fam. Ct., Bx. Co., 2017),
illustrates and, in fact, suggests the need for enactment of this meas-
ure. The mother, a teenager at the time of the child's birth, was
involved with two men, one of whom joined the mother in signing an AOP
right after the child's birth but soon became uninvolved both with the
child and her mother. The other man, who was married and in his thirties
when the child was born, developed a parental relationship with the
child. The AOP signatory filed a petition to vacate the AOP but it was
dismissed for failure to prosecute. The child's attorney filed a vacatur
petition, but the Support Magistrate denied it since neither the mother
nor the AOP signatory had a vacatur petition pending. Upon referral to a
Family Court judge to adjudicate equitable estoppel issues, the judge
noted that the limitation that only an AOP signatory may challenge an
AOP is an "impediment to a non-signatory seeking to establish paterni-
ty."  Id., at 333. Noting that children's best interests are the para-
mount concern in paternity proceedings, the judge stated that adjudi-
cation of "the correct man" to be the child's father would be in her
best interests:

(S)he is locked into a legal status in which she has a "legal father"
whom everyone agrees is not her biological father, who does not support
her, and who does not wish to pursue a relationship with her...  Id., at
335.

The child, as well as her biological father, requested that this matter
be corrected as she related to his children as her siblings and wanted
to adopt his surname. Correction of her true paternity was also neces-
sary to ensure her rights to inheritance, Social Security and continued
visitation. In granting the relief, the Court stated:  Given the ambigu-
ities of the statutory scheme as it impacts practice and procedure, I
write this decision so the attention might be paid for consideration by
appropriate authorities to future refinements of the practice and the
statute.

Id., at 336.

Adding the flexibility to Article 5 of the Family Court Act as recom-
mended in this measure would fully address the problems identified in
Emily R. and would better enable Family Court to fulfill its obligation
to further children's best interests in its paternity decisions.

This measure, which would have no meaningful fiscal impact on the State,
would take effect 90 days after it shall have become a law.

 
LEGISLATIVE HISTORY:

None. New proposal.

2017-S8287 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8287
 
                             I N  S E N A T E
 
                              April 26, 2018
                                ___________
 
 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, in relation to standing to file
   paternity petitions, necessary parties in paternity cases and vacating
   acknowledgments of paternity

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 522 of the family court act, as amended by chapter
 892 of the laws of 1986, is amended to read as follows:
   § 522. Persons who may originate proceedings. Proceedings to establish
 the paternity of the child and to compel support under this article  may
 be commenced by the mother, whether a minor or not, by a person alleging
 to be the father, whether a minor or not, by the child or child's guard-
 ian or other person standing in a parental relation or being the next of
 kin of the child, or by any authorized representative of an incorporated
 society  doing  charitable  or  philanthropic  work, or if the mother or
 child is or is likely to become a public charge on  a  county,  city  or
 town, by a public welfare official of the county, city or town where the
 mother resides or the child is found. If a proceeding is originated by a
 public  welfare  official  and thereafter withdrawn or dismissed without
 consideration on the merits, such withdrawal or dismissal shall be with-
 out prejudice to other persons. AN ALLEGED FATHER MAY FILE A PETITION TO
 ESTABLISH  PATERNITY  NOTWITHSTANDING  AN  ACKNOWLEDGMENT  OF  PATERNITY
 SIGNED BY THE MOTHER AND ANOTHER MAN.
   § 2. Section 523 of the family court act, as amended by chapter 398 of
 the laws of 1997, is amended to read as follows:
   § 523. Petition. Proceedings are commenced by the filing of a verified
 petition, alleging that the person named as respondent, or the petition-
 er  if  the petitioner is a person alleging to be the child's father, is
 OR MAY BE the father of the child and petitioning the court to  issue  a
 summons  or  a  warrant,  requiring the respondent to show cause why the
 court should not enter a declaration of paternity, an order of  support,
 and  such  other  and  further  relief  as  may be appropriate under the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD14584-01-8

 S. 8287                             2
 
 circumstances. The petition shall be in  writing  and  verified  by  the
 petitioner.  Any such petition for the establishment of paternity or the
 establishment,  modification and/or enforcement of a child support obli-
 gation for persons not in receipt of family assistance, which contains a
 request  for child support enforcement services completed in a manner as
 specified in section one hundred eleven-g of the  social  services  law,
 shall constitute an application for such services. IN THE EVENT THAT THE
 MOTHER  SIGNED AN ACKNOWLEDGEMENT OF PATERNITY WITH A MAN OTHER THAN THE
 ALLEGED FATHER, THE MALE SIGNATORY TO THE ACKNOWLEDGMENT OF PATERNITY IS
 A NECESSARY PARTY AND MUST BE NAMED AS A RESPONDENT.
   § 3. Section 524 of the family court act, as amended by chapter 59  of
 the  laws  of  1993 and subdivision (b) as amended by chapter 398 of the
 laws of 1997, is amended to read as follows:
   § 524. Issuance of summons. (a) On receiving a petition sufficient  in
 law  commencing  a paternity proceeding, the court shall cause a summons
 to be issued, requiring the respondent OR RESPONDENTS to show cause  why
 the  declaration  of paternity, order of filiation, order of support and
 other and further relief prayed for by the petition should not be made.
   (b)  The summons shall contain or have attached thereto a notice stat-
 ing: (i) that [the] A respondent's failure to appear shall result in the
 default entry of an order of filiation by the court upon  proof  of  THE
 respondent's  actual  notice  of the commencement of the proceeding; and
 (ii) that a respondent's failure to appear may result in the  suspension
 of  his  or her driving privileges; state professional, occupational and
 business licenses; and sporting licenses and permits.
   § 4. Subdivision (a) of section  532  of  the  family  court  act,  as
 amended  by  chapter  214  of  the  laws  of 1998, is amended to read as
 follows:
   (a) The court shall advise the parties of their right to one  or  more
 genetic  marker tests or DNA tests and, on the court's own motion or the
 motion of any party, shall  order  the  mother,  her  child  [and],  the
 alleged  father,  AND, IF APPROPRIATE, THE MALE SIGNATORY TO AN ACKNOWL-
 EDGEMENT OF PATERNITY to submit to one or more  genetic  marker  or  DNA
 tests  of  a type generally acknowledged as reliable by an accreditation
 body designated by the secretary of the federal department of health and
 human services and performed by a laboratory approved by such an accred-
 itation body and by the commissioner of health or by  a  duly  qualified
 physician  to  aid in the determination of whether the alleged father is
 or is not the father of the child. 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. The
 record  or  report of the results of any such genetic marker or DNA test
 ordered pursuant to this section or  pursuant  to  section  one  hundred
 eleven-k of the social services law shall be received in evidence by the
 court pursuant to subdivision (e) of rule forty-five hundred eighteen of
 the  civil  practice  law and rules where no timely objection in writing
 has been made thereto and that if such timely objections are  not  made,
 they  shall be deemed waived and shall not be heard by the court. If the
 record or report of the results of any such genetic marker or  DNA  test
 or tests indicate at least a ninety-five percent probability of paterni-
 ty,  the  admission  of  such record or report shall create a rebuttable
 presumption of paternity, and shall establish, if unrebutted, the pater-
 nity of and liability for the support of a child pursuant to this  arti-
 cle and article four of this act.

 S. 8287                             3
 
   §  5.  Section  542 of the family court act is amended by adding a new
 subdivision (d) to read as follows:
   (D)  IF THE MOTHER SIGNED AN ACKNOWLEDGEMENT OF PATERNITY WITH ANOTHER
 MAN WHOM THE COURT HAS DETERMINED IS NOT THE BIOLOGICAL  FATHER  OF  THE
 CHILD,  THE  COURT  SHALL  MAKE AN ORDER VACATING THE ACKNOWLEDGEMENT OF
 PATERNITY AT THE SAME TIME THAT IT MAKES THE ORDER OF FILIATION.
   § 6. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

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Senate Bill S8287

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

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Votes

May 22, 2018 - Judiciary Committee Vote

Judiciary Committee Vote: May 22, 2018

2017-S8287 (ACTIVE) - Details

2017-S8287 (ACTIVE) - Summary

2017-S8287 (ACTIVE) - Sponsor Memo

2017-S8287 (ACTIVE) - Bill Text download pdf

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Sponsored By

John J. Bonacic

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

Votes

2017-S8287 (ACTIVE) - Details

2017-S8287 (ACTIVE) - Summary

2017-S8287 (ACTIVE) - Sponsor Memo

2017-S8287 (ACTIVE) - Bill Text download pdf

Comments