BILL NUMBER:A2578

TITLE OF BILL:

An act to repeal section 516 of the family court act, relating to agree-
ment or compromise of support in paternity proceedings

PURPOSE OF BILL:

This measure would codify the decisions of the United States District
Court in Williams v. Lambert, 902 F.Supp. 460 (S.D.N.Y., 1995), by
repealing section 516 of the Family Court Act, which now requires court
approval for an agreement between the mother and putative father for the
support and education of an out-of-wedlock child. When so approved, that
agreement bars other remedies for the support and education of the
child.

JUSTIFICATION:

Section 516, enacted in 1962 but derived from the old Domestic Relations
Law, served two purposes. First, it encouraged putative fathers to
settle paternity claims, thereby reducing the necessity for legal
proceedings. The agreement offered the putative father certainty and a
limitation on his future support obligation, while the interests of the
child and mother were protected by the requirement for judicial review.
Second, the statute helped ensure that the child would not be without
              

support from the father. By furnishing an incentive to settle, the stat-
ute tended to prevent support of the out-of-wedlock child from becoming
lost in the intricacies of the process and the uncertainty of adjudica-
tory outcome.

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

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

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

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

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

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

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

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

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

LEGISLATIVE HISTORY:

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

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

EFFECTIVE DATE:

Immediately.