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A petition is filed under the Uniform Support of Dependents Law on June 1, 1988

A petition is filed under the Uniform Support of Dependents Law on June 1, 1988 by the Department of Social Services of Mercer County, New Jersey on behalf of petitioner. The Petitioner seeks an Order of Filiation to declare the Respondent, the father of the subject child born on April 13, 1985, and an order of support on her behalf. A Lawyer said that, the hearing, at which the mother, Respondent, and an Associate Director of Paternity Evaluation for Roche Labs testified, commenced on July 8, 1992 in Queens County Family Court. The subject child’s birth records, the Respondent’s birth certificate and the results of HLA and DNA tests were admitted into evidence.

This matter involves a fairly simple factual scenario. Both Petitioner and Respondent, neither of whom has ever been married, testified that they engaged in sexual relations during the month of July, 1984. The subject child was born approximately nine months later, in April, 1985. The blood tests indicate that the probability that the Respondent is the father of the subject child is 99.22% as compared to an untested, unrelated man of the North American Black population. The Associate Director of Paternity Evaluation for Roche Labs, an expert in genetics and paternity evaluation testified that there is a 127 to 1 chance that the Respondent is the father and explained the testing procedures. Based on the evidence presented, Respondent’s paternity was established by clear and convincing evidence.

A Lawyer said that, respondent claims that the sexual relations which resulted in the child’s birth were non-consensual. This Court gives no credit to Respondent’s testimony that he was forced to have sex with the mother. He also raises the issue of legal consent, since intercourse occurred when the mother was 21 years old and the Respondent was only 16 years old, thereby raising the claim that he was a victim of the statutory crime of rape in the third degree.

The issue in this case is whether a person below the age of legal consent for sexual intercourse and therefore technically a victim of statutory rape should be legally responsible for the child resulting from that union.

The Court said that the issue raised is clearly one of first impression in New York State. However, other defenses to the entry of an order of filiation or support have been raised and addressed by New York courts. An analysis of the statutory and case law indicates that New York public policy strongly favors legitimatization and protection of children. The Court of Appeals held that wrongful conduct of one of the parents in causing conception does not in any way alter the parental obligation to support the child. In that matter, the mother intentionally misrepresented that she was using birth control and the father claimed he was deprived of his constitutional right to decide whether to father a child. The Court decided that a person may not avoid his/her child support obligation simply because another private person has not fully respected his desire to use birth control.

Continuing that line of reasoning, the Second Department has ruled that the mentally handicapped condition of a putative father, which precludes his consent to fathering a child, is not relevant in a paternity proceeding; rather the welfare of the child is paramount. The age of a putative father is irrelevant to a paternity proceeding and minority will not excuse his obligation to support the child. The primary purpose of a paternity proceeding is to protect the welfare of the illegitimate child and, accordingly, the mother’s conduct should have no bearing on the father’s duty neither of support nor upon the manner in which the parents’ respective obligations are determined. The Third Department has examined the issue of rape committed by the Petitioner father and found that Petitioner is not merely looking to benefit from his wrongdoing, but desiring to assume the responsibility of supporting the child. In that matter, the Court found that the father, although he committed the felony of rape in the third degree, did not forfeit his right to establish paternity.

For a defense to an order of filiation or support to succeed, the Court of Appeals has made it clear that it must constitute a constitutional violation superior to the public policy interest of the child. The Respondent has failed to make such a showing. Respondent father’s recourse under the law as to the mother of the child in this matter was to file criminal charges against her. To penalize this child for the mother’s actions would run contrary to the fundamental purpose of this proceeding as established by statutory and case law. This Court is not concerned with the child’s mother’s actions but rather protecting the best interests of and insuring that adequate provision will be made for, the child’s needs.

Accordingly, an order of filiation is granted and Respondent is legally declared the father of the subject child and is responsible for her support. This matter is referred to Hearing Examiner B on October 27, 1992 to determine Respondent’s support obligation which dates back to the original filing of the petition.

Although the alleged father in a filiation proceeding committed the felony of rape, it did not forfeit his right to establish paternity. Wrongful conduct of one of the parents in causing conception does not in any way alter the parental obligation to support the child. If you are involved in a case similar to the case at bar, you will need the help of a Queens Criminal Attorney and/or Queens Rape Attorney. Call us at Stephen Bilkis and Associates for free consultation.

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