Validity of Child Support Statute Is Questioned

In a unanimous panel decision issued by the Appellate Division, First Department, the court recently invalidated a 1992 support agreement because it failed to provide adequate support for a child born out of wedlock. What made the case noteworthy was the fact that the court's opinion called into question the constitutionality of a decades-old family law statute that requires judicial approval of an agreement for child support between a mother and the purported father of a nonmarital child.

In the case, In re Barbara N. v. James H.N., 4399, the court declined to actually rule on the constitutionality of Family Court Act ' 516, but the panel noted that “to the extent the statute precludes attempts to reverse support agreements for nonmarital children, its constitutionality is questionable.”

The decision came on the heels of a ruling in the case of Alessandra S. v. Robert E., F-09446-08, in which Family Court Judge Susan R. Larabee agreed with a magistrate that a ' 516 agreement that was not judicially approved should not be binding. And while Judge Larabee, like the First Department, sidestepped the constitutionality issue, she noted in that there has been a “sea change in the science and law of paternity and child support” since the Court of Appeals upheld the constitutionality of ' 516 in 1979, in Bacon v. Bacon, 46 NY2d 477 (1979).

An Old Law in Changing Times

Enacted in 1962, Family Court Act ' 516 provides that an agreement for support of an out-of-wedlock child is binding “upon the mother and the child only when the court determines that adequate provision has been made and is fully secured and approves said agreement or compromise.” The law also requires public welfare officials to approve all ' 516 compromises. Joel S. Stern of Stern & Zingman, who represented the mother in In re Barbara N., said the law, which has been under fire for some time, was adopted before DNA testing, when paternity was hard to prove. It was passed to “encourage” fathers to agree to a fixed payment and “be done with it,” he said in an interview.

According to Myrna Felder, a family law expert, the statute, passed before the Child Support Standard Act, enacted in 1989, was intended to prevent an illegitimate child from winding up on the public dole. But, unlike a regular child support agreement under Article 4 of the Family Court Act, a ' 516 compromise “is not modifiable,” Felder explained.

The Barbara N. Case

The parents in Barbara N. entered into an agreement under which the baby's father was to pay $126,050 over a nine-year period to cover support, child care, education, medical and other expenses. A hearing officer initially approved the agreement, even though the father would have had to pay far more ($21,052 a year) under the Child Support Standards Act.

Despite the fixed nature of ' 516 compromises, in 2007, Barbara N. challenged the agreement, which she claimed did not comport with the requirements of ' 516. She also argued that ' 516 was discriminatory, since support agreements for children born to married parents, under Family Court Act ' 413, can be re-evaluated while ' 516 prohibits any such modification. In June 2007, Support Magistrate Solange N. Grey dismissed the mother's petition. Family Court Judge Sara P. Schechter entered the magistrate's order in August 2007.

On appeal, the First Department reversed and ordered a new hearing, stating, “While the agreement may have been in the best interests of the parents, it clearly was not in the best interests of the child, who [sic] the Hearing Officer was obligated to protect.”

Since the panel found the hearing officer never properly approved the agreement, it concluded that it “need not address” the constitutionality of ' 516. However, Justice Eugene L. Nardelli, who wrote the opinion for the panel, went on to say that “to the extent the statute precludes attempts to reverse support agreements for nonmarital children, its constitutionality is questionable.”

Donald Lockhart Schuck of Bronstein Van Veen & Schuck, who represented James H.N., called the appellate panel's ruling “troubling” and said it could “discourage litigants from entering into a settlement agreement out of concern” that it might not be enforced in the future.

The Alessandra S. Case

In Judge Larabee's ruling in Alessandra S., the underlying ' 516 agreement, drafted in 2002, provided, in part, that Robert E. would pay $6,000 a month in support after the child was born, until the child's emancipation. Unlike the situation in Barbara N., the parties did not submit the agreement to Family Court until nearly six years later, when Alessandra S. asked Support Magistrate Matthew Troy to approve it. Robert E., in turn, maintained, that the compromise should not be approved because of his then-current financial circumstances. In December 2008, Support Magistrate Troy found the agreement failed to provide adequate support for the child. Alessandra S. argued on appeal that the magistrate's ruling stemmed from his personal discomfort with the statute. However, Judge Larabee found “no legal basis to disturb” the magistrate's order. Since the agreement never received court approval, it was not binding upon the parties, she held. While Judge Larabee did not invalidate the agreement on constitutional grounds, she pointed out that a “sea change in the science and law” of paternity and child support had occurred since the 1979's Bacon decision. Additionally, she noted that “the very nature of what constitutes a family unit has changed dramatically due to changes in social mores and the use of assisted reproductive technologies.”

Bernard E. Clair of Clair, Greifer, the lead attorney for Alessandra S. and the chairman of this newsletter's Board of Editors, said the decision amounted to “impermissible judicial legislation.” While ' 516 is “viewed by many on the bench as having been overtaken by society and science ' so long as the rules are followed ' [the agreement] should have been enforced on its terms.”

But Robert Z. Dobrish of Dobrish Zeif Gross & Wrubel, who represented Robert E., said the statute “offends due process.” He noted that courts have held that a mother could not bind a child by entering into a ' 516 agreement. In light of these rulings, he suggested the father of a child born out of wedlock should not be precluded from challenging such an agreement.

Repeal Efforts

Legislative efforts to repeal ' 516 have been under way for a decade. This year, A02578/S2975 has reached the floor of the state Assembly and is before the Senate Codes committee. The court system's Family Court advisory committee has also called for the repeal of the “obsolete” statute, observing that ' 516 agreements are often given little judicial review before being perfunctorily approved, and that the constitutionality of the law is shaky.

Noeleen G. Walder is a reporter with the New York Law Journal, an Incisive Media sister publication of this newsletter, in which an expanded version of this article first appeared.

In a unanimous panel decision issued by the Appellate Division, First Department, the court recently invalidated a 1992 support agreement because it failed to provide adequate support for a child born out of wedlock. What made the case noteworthy was the fact that the court's opinion called into question the constitutionality of a decades-old family law statute that requires judicial approval of an agreement for child support between a mother and the purported father of a nonmarital child.

In the case, In re Barbara N. v. James H.N., 4399, the court declined to actually rule on the constitutionality of Family Court Act ' 516, but the panel noted that “to the extent the statute precludes attempts to reverse support agreements for nonmarital children, its constitutionality is questionable.”

The decision came on the heels of a ruling in the case of Alessandra S. v. Robert E., F-09446-08, in which Family Court Judge Susan R. Larabee agreed with a magistrate that a ' 516 agreement that was not judicially approved should not be binding. And while Judge Larabee, like the First Department, sidestepped the constitutionality issue, she noted in that there has been a “sea change in the science and law of paternity and child support” since the Court of Appeals upheld the constitutionality of ' 516 in 1979, in Bacon v. Bacon , 46 NY2d 477 (1979).

An Old Law in Changing Times

Enacted in 1962, Family Court Act ' 516 provides that an agreement for support of an out-of-wedlock child is binding “upon the mother and the child only when the court determines that adequate provision has been made and is fully secured and approves said agreement or compromise.” The law also requires public welfare officials to approve all ' 516 compromises. Joel S. Stern of Stern & Zingman, who represented the mother in In re Barbara N., said the law, which has been under fire for some time, was adopted before DNA testing, when paternity was hard to prove. It was passed to “encourage” fathers to agree to a fixed payment and “be done with it,” he said in an interview.

According to Myrna Felder, a family law expert, the statute, passed before the Child Support Standard Act, enacted in 1989, was intended to prevent an illegitimate child from winding up on the public dole. But, unlike a regular child support agreement under Article 4 of the Family Court Act, a ' 516 compromise “is not modifiable,” Felder explained.

The Barbara N. Case

The parents in Barbara N. entered into an agreement under which the baby's father was to pay $126,050 over a nine-year period to cover support, child care, education, medical and other expenses. A hearing officer initially approved the agreement, even though the father would have had to pay far more ($21,052 a year) under the Child Support Standards Act.

Despite the fixed nature of ' 516 compromises, in 2007, Barbara N. challenged the agreement, which she claimed did not comport with the requirements of ' 516. She also argued that ' 516 was discriminatory, since support agreements for children born to married parents, under Family Court Act ' 413, can be re-evaluated while ' 516 prohibits any such modification. In June 2007, Support Magistrate Solange N. Grey dismissed the mother's petition. Family Court Judge Sara P. Schechter entered the magistrate's order in August 2007.

On appeal, the First Department reversed and ordered a new hearing, stating, “While the agreement may have been in the best interests of the parents, it clearly was not in the best interests of the child, who [sic] the Hearing Officer was obligated to protect.”

Since the panel found the hearing officer never properly approved the agreement, it concluded that it “need not address” the constitutionality of ' 516. However, Justice Eugene L. Nardelli, who wrote the opinion for the panel, went on to say that “to the extent the statute precludes attempts to reverse support agreements for nonmarital children, its constitutionality is questionable.”

Donald Lockhart Schuck of Bronstein Van Veen & Schuck, who represented James H.N., called the appellate panel's ruling “troubling” and said it could “discourage litigants from entering into a settlement agreement out of concern” that it might not be enforced in the future.

The Alessandra S. Case

In Judge Larabee's ruling in Alessandra S., the underlying ' 516 agreement, drafted in 2002, provided, in part, that Robert E. would pay $6,000 a month in support after the child was born, until the child's emancipation. Unlike the situation in Barbara N., the parties did not submit the agreement to Family Court until nearly six years later, when Alessandra S. asked Support Magistrate Matthew Troy to approve it. Robert E., in turn, maintained, that the compromise should not be approved because of his then-current financial circumstances. In December 2008, Support Magistrate Troy found the agreement failed to provide adequate support for the child. Alessandra S. argued on appeal that the magistrate's ruling stemmed from his personal discomfort with the statute. However, Judge Larabee found “no legal basis to disturb” the magistrate's order. Since the agreement never received court approval, it was not binding upon the parties, she held. While Judge Larabee did not invalidate the agreement on constitutional grounds, she pointed out that a “sea change in the science and law” of paternity and child support had occurred since the 1979's Bacon decision. Additionally, she noted that “the very nature of what constitutes a family unit has changed dramatically due to changes in social mores and the use of assisted reproductive technologies.”

Bernard E. Clair of Clair, Greifer, the lead attorney for Alessandra S. and the chairman of this newsletter's Board of Editors, said the decision amounted to “impermissible judicial legislation.” While ' 516 is “viewed by many on the bench as having been overtaken by society and science ' so long as the rules are followed ' [the agreement] should have been enforced on its terms.”

But Robert Z. Dobrish of Dobrish Zeif Gross & Wrubel, who represented Robert E., said the statute “offends due process.” He noted that courts have held that a mother could not bind a child by entering into a ' 516 agreement. In light of these rulings, he suggested the father of a child born out of wedlock should not be precluded from challenging such an agreement.

Repeal Efforts

Legislative efforts to repeal ' 516 have been under way for a decade. This year, A02578/S2975 has reached the floor of the state Assembly and is before the Senate Codes committee. The court system's Family Court advisory committee has also called for the repeal of the “obsolete” statute, observing that ' 516 agreements are often given little judicial review before being perfunctorily approved, and that the constitutionality of the law is shaky.

Noeleen G. Walder is a reporter with the New York Law Journal, an Incisive Media sister publication of this newsletter, in which an expanded version of this article first appeared.