This Family Court Article 5 paternity proceeding was commenced by the Suffolk County Department of Social Services on behalf of petitioner against respondent. A Suffolk Family Lawyer said that, the trial was commenced and concluded on June 2, 1981. A New York Family Lawyer said at the outset, the respondent orally raised two defenses, to wit: that the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child. A Suffolk Child Support Lawyer said that, these defenses were denied for the reasons set forth on the record. Upon the completion of testimony, the respondent requested, was granted permission and submitted a Post Trial Memorandum which re-raised the identical defenses alluded to heretofore. The County Attorney offered no further submission but relied on the points raised at trial.
A New York Custody Lawyer said the issue in this case is whether the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child.
The court said that it will reconsider the defenses first. With respect to respondent’s contention that the instant proceeding must be dismissed due to the existence of laches attributable to the petitioner, the interposing of such a defense does not lie in an action brought pursuant to Article 5 of the Family Court Act. While the inexcusable failure to promptly assert a claim may, at times, operates as a bar to relief, such failure constitutes a barrier only in equitable actions. It is a time honored legal maxim that the doctrine of laches is one peculiar to actions in equity; laches does not operate to bar actions at law that are commenced within the applicable limitation period. A paternity proceeding, unknown at common law, is a creature of statute and clearly an action at law therefore, it cannot be affected by laches. The action is either timely or untimely pursuant to statute.
Since the instant proceeding was commenced within the period provided by FCA 517(b), it must be construed as being timely. The propriety of the period of limitations applicable to petitioning public welfare officials has been the subject of much judicial discussion, and need not be recounted herein. Suffice it to say that the Legislature, by enacting § 517(b), is presumed to have considered both the notions of public policy and prejudice, therein favoring an extended period for public welfare petitioners. Respondent’s assertion that the Legislature intended the ten year period to apply to situations wherein the public official grants assistance after the expiration of the normal § 517(a) two year period is unsubstantiated and must be discounted as mere surmise.
A Westchester County Family Lawyer said the respondent further maintains that the instant proceeding must be dismissed as not being in the child’s best interests. The statute enumerates those powers and duties of the local social service official relative to accepting child support assignments, to enforcing child support obligations and to locating absent parents of dependent children (see § 111-c(1) and (2)). Subdivision 3, added L.1976 ch. 326 § 4, created an exception to the general rule that the public official must enforce support obligations in every case. The new subdivision gives the public official the discretion not to establish paternity and seek child support if such action would be detrimental to the child’s interests. The discretion afforded the legal official is wholly internal and cannot be said to relate in any manner to the proceeding herein. This court cannot substitute its judgment for that of the local social service official even were we so predisposed. The remedy in this regard is by way of an Article 78 proceeding in the Supreme Court. Accordingly, while the facts herein are quite similar to the facts in one case, we do not accept the reasoning contained therein as a basis for dismissing the paternity petition herein.
Each party called one witness, one for the petitioner–the respondent for himself. Predictably, the testimony was quite disparate. A Suffolk County Family Lawyer said the petitioner alleged that the parties met in mid August of 1972, first had sex two weeks later and continued these relations through May of 1973. The respondent stated that they had met in May of 1972, commenced sexual relations one week later and terminated their relationship in July of 1972. Further, that he was never with the petitioner from July of 1972 to August of 1973, the month of the child’s birth. On the witness stand, the petitioner averred that she discovered that she was pregnant in April of 1973, in her Bill of Particulars she stated that it was in January of that year. She testified that she had informed respondent of her pregnancy on the last day of April or the first day of May, 1972. In her Bill of Particulars, she related that she had told the respondent of her pregnancy in January of 1973. Contrary to her courtroom statement, the Bill of Particulars notes that intercourse commenced at the end of September or the end of October, 1972. The court is mindful that some eight years have passed between the time of the mother’s and alleged putative father’s relationship. This alone could explain the discrepancies in the witnesses’ testimony; however, the many inconsistencies between mother’s testimony and her Bill of Particulars, both 1981 vintage, cannot be explained easily or otherwise. It is beyond cavil that a paternity petition be established by evidence that is clear, convincing and entirely satisfactory.
The petitioner’s testimony herein absolutely precludes such a finding; the petition is accordingly dismissed.
If you have issues regarding paternity, seek the legal assistance of a Suffolk Family Attorney and/or Suffolk Child Support Attorney at Stephen Bilkis and Associates. Call us for free consultation.