The Docket- The Children’s Law Center
and always are subject to modification based upon the needs of the child
and the circumstances of the parents.
Compromise agreements were rarely,
if ever, in a child’s best interest, as
they left a child fatherless and receiving less (sometimes far less) financial
support than s/he would receive if the
man was adjudicated the father and
compelled to pay under child support
guidelines. Twelve years after the
mother in Clara C. signed an agreement pursuant to F.C.A. § 516, waiving future support and paternity proceedings on behalf of the parties’ son,
the Family Court dismissed her child
support petition, ruling that she was
required to abide by the contract she
had made. The Court of Appeals reversed and reinstated the petition, on
the grounds that the agreement did
not receive adequate judicial review at
the time it was approved, and that the
child was not represented by an attorney. Three dissenting justices would
additionally have declared F.C.A. §
516 unconstitutional, as an antiquated statute eclipsed by the reliability of
genetic testing and by modern paternity law that focuses upon the benefit
to out-of-wedlock children of having
an adjudicated father and, ideally, becoming part of an extended paternal
family. Upon remand to the Family
Court, a finding of paternity was entered, as well as an order requiring
child support commensurate with
William L.’s earnings. Although the
Office of Court Administration had
recommended the repeal of F.C.A.
§ 516 for years, without success, the
Court of Appeals opinion in Clara C.,
which drew from CLCNY’s Brief on
Behalf of the Child, finally sounded
the death knell for the statute, which
was subsequently repealed.
The creation of a robust writing unit
had a circuitous route. In order to
6? CLCNY Fall/Winter 2013
handle the increasing volume of briefs
and motions, CLCNY hired a part
time attorney to do writing in December 2000 and did not hire a full time
writing attorney until June 2002.
By 2001, CLCNY was filing motion
papers “virtually every week,” meaning almost 50 carefully developed
documents per year. In 2004, we
reached and substantially exceeded
the landmark of 100 motions in the
wake of published articles
and seminars questioning the methodology of courtordered forensic
evaluations
as
based upon an
unreliable “soft
science”
and
transgressing evidentiary standards
pertaining to expert
testimony.
Although
both trial and appellate
courts ultimately re-affirmed the value of well-crafted mental health assessments in making determinations
as to custody and visitation, much
litigation was spawned in the interim.
Some improvements in the standards
of Family Court practice arose from
this controversy, including shedding
light upon the methodologies used
by forensic evaluators and the process through which they arrived at
recommendations, as well as curtailing questionable practices such as ex
parte communications between attorneys and forensic evaluators.
filed was comparable to 2005.
In 2006, CLCNY filed its second brief
in the Court of Appeals. In Shondel
J. v. Mark D., 7 N.Y.3d 320 (2006),
the Court of Appeals upheld the doctrine of equitable estoppel as a statutory exception to the right to genetic
testing in paternity and child support
proceedings. The Court held that
although a child has an interest in
learning the identity of her biological
father, the child “also has an
interest—no less powerful—in maintaining her
relationship with the
man who led her to
believe that he is
her father.” Id. at
329. The Court rejected the argument
that Mark D. was defrauded, insofar as genetic testing confirmed
that he was not the child ?e?)???????????????????????????q??)????????????????????????????????????????????t???????????????)???????????????????????????????????)???????????????????????????????)%??????????Q???
????????????????)???????????????????????????????????????5?????????????????????)?????????????????????????????)?????????????????????????)???????????????e???????q???????????????????????????????????t?%??(+?q]?????)???????????)????????????????)??????????????)?????????????)???????t()%????????????????????????????)?????????????????????????)]?????U???????????????????????????????????????????????????)?????????????????????????????)??????????????????Q???????)Q??????????????????????????()%??????????????????????????????)??????????????????
1
9d??Q???????????????????????????????????)????????????????????????????)????????????? ???????????????????)]?????U?????????????????????)???????????????????????????????%????????????????????????)?????????????????????????)????????????????????????????????????????????????????????((