Judge Susan R. Larabee

NEW YORK COUNTY
Family Court

Ms. S was represented by Joseph DeSimone, Esq.

Mr. E was represented by Robert Dobrish, Esq.

The Department of Social Services was represented by Daniel Krombach, Esq.

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS FOR CONTEMPT OF COURT.

PURSUANT TO §1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE (35) DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF COURT, OR THIRTY-FIVE (35) DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

AMENDED DECISION AND ORDER

(AFTER FILING OF OBJECTIONS)

The instant objection concerns a seldom-used and antiquated provision of the Family Court Act which permits the settlement of a support action through an agreement or compromise between the mother and the alleged father of a subject child born out-of-wedlock. ¹ Section 516 of the Family Court Act authorizes the court to "approve" such a contract after notice and an opportunity to be heard are given to the local public welfare department. Court approval and complete performance of the contract bar the mother and child from other remedies for seeking support; however, no order of filiation or support is entered by the court because no parental obligation is established.

"Compromise" agreements existed well before they were granted statutory imprimatur. In the first quarter of the twentieth century an alleged father in New York State could be criminally prosecuted and sentenced to serve a term in a workhouse for a failure to support and educate his "illegitimate" child.

Compromise agreements were devised to protect the father from the embarrassment and economic consequences of a paternity and support order. They allowed a man to settle a paternity claim, without an admission or finding that he was the child's father, by giving a fixed sum of money to the child's mother . . . .Payment assured the man that he would not have his name linked with a scandal that could ruin his marriage and or his standing in the community. Confusion in 516 Compromise Agreements, Judith M. Reichler, 6/19/97 N.Y.L.J. (col. 1).

These agreements were commonly made by a local welfare official and required no court approval. Because of concerns that these settlements were potentially inadequate, the Legislature amended the law in 1925 to enact Domestic Relation Law section 121. Judicial approval of certain settlements was now required before releasing the alleged father from his obligations.  Matter of Clara C. v. William L., 96 N.Y.2d 244 (2001) citing Mem. of Women's City Club of New York, Bill Jacket, L. 1925, ch. 255, at 9-10. Domestic Relations Law section 121 was replaced with Family Court Act section 516 in 1962. Family Court Act section 516 provides that an agreement for support of an out-of-wedlock child is binding only when (1) adequate provision has been made for the child ; (2) when the provision of support is fully secured; and (3) when the court has approved said agreement or compromise.

The constitutionality of Family Court Act section 516 was first considered by the  New York Court of Appeals in 1979. In  Bacon v. Bacon, 46 N.Y.2d 477 (1979), the Court of Appeals held that it was legitimate to treat children born outside of a marriage differently from children with married parents because section 516 agreements reduced the need for legal proceedings while helping to ensure that a child would not be left without support from an alleged father. Noting that paternity proceedings at that time involved complex and difficult problems of proof, the Court of Appeals found that the statute passed constitutional muster because it furnished the parties with an incentive to settle these cases in a way which guaranteed the child some means of support and thereby represented a "balanced approach to the sensitive problem it addresses." Bacon at 480.

Since the entry of the Bacon decision, there has been a sea change in the science and law of paternity and child support including the 1982 amendment of the Family Court Act to permit the use of blood tests as positive evidence of paternity and the 1989 enactment of the Child Support Guidelines Act which makes no distinction with regard to the "marital status" of the child. See, Confusion in 516 Compromise Agreements, Judith M. Reichler, 6/19/97 NYLJ (col. 1). Moreover, the very nature of what constitutes a family unit has changed dramatically due to changes in societal mores and the use of assisted reproductive technologies. However, when the Court of Appeals revisited the issue of section 516 agreements in 2001 in  Matter of Clara C. v. William L., 96 N.Y.2d 244 (2001)the Court found no occasion to reconsider the constitutionality of the statute. What Matter of Clara C. v. William L. did make clear, however, was that the Family Court must engage in an independent analysis to determine the fairness and adequacy of a proposed section 516 agreement before approving it. A perfunctory judicial review of such an agreement, without any determination of its adequacy, was held insufficient to satisfy the requirements of the statute. Matter of Clara C. v. William L. at 250.

In the instant case, the parties executed a lengthy, attorney-drafted agreement on October 1, 2002 concerning the support of petitioner's as yet unborn child. In consideration for respondent's acknowledgment of paternity of the child, petitioner agreed never to institute paternity proceedings against him and not to seek judicial approval of the Agreement pursuant to Family Court Act section 516 until after the birth of the child. ²The parties further agreed that respondent would pay support to petitioner of $4,000 per month until the child was born. After the birth of the child, respondent agreed to pay support, inter alia, in the amount of $6,000 per month until the child's emancipation. The monthly support amount was to be adjusted each year on the first day of the month following the child's birthday pursuant to the annual percentage changes in the Consumer Price Index. Respondent also committed to pay for petitioner's medical insurance until the emancipation of the child or until petitioner married. The parties specifically acknowledged that their agreement varied significantly from the Child Support Standards Act and waived their rights under the guidelines.

No application was made to the Family Court for approval of the parties' Agreement until petitioner filed the instant petition on August 27, 2008. The parties appeared before Support Magistrate Troy on October 1, 2008 and on December 8, 2008. Both parties were represented by counsel and the Department of Social Services was given notice of the proceeding and an opportunity to be heard. Petitioner argued in favor of court approval of the 516 agreement and counsel to the Department of Social Services sought approval and enforcement of the agreement. Respondent argued that the magistrate should decline to approve the agreement based upon his current financial circumstances. At the conclusion of the proceeding on December 8, 2008, Support Magistrate Troy entered an order dismissing petitioner's petition upon a finding that the Agreement had never been approved by the court and did not make adequate provision for the subject child.

Petitioner-mother filed an objection to the order of dismissal on February 11, 2009. Petitioner argues that the magistrate misunderstood the purpose and nature of section 516 compromise agreements and that this fundamental misunderstanding of the statute resulted in his application of the wrong standard to analyze the propriety of the parties' agreement. Petitioner alleges that the magistrate improperly analyzed the parties' agreement from the perspective of respondent's ability to make the agreed upon payments and not from the perspective of whether or not the agreement made adequate provision for the child. Petitioner urges that once a putative father has benefited from those portions of the compromise agreement that are beneficial to him, he should not be permitted to obtain judicial modification of his original support obligation in the context of an approval proceeding. Because the parties did not place any terms considering modification in their agreement, petitioner argues that the agreement is not modifiable. Finally, petitioner avers that the magistrate's dismissal of her application was based upon his own discomfort with Family Court Act section 516 agreements. Respondent argues in rebuttal that petitioner's reading of the relevant statute reduces the court-approval process to a rubber stamp of the parties' agreement and that this could not have been the intention of the Legislature. Respondent submits that the case law relied upon by petitioner applies to situations where a section 516 agreement was already reviewed and approved by a court and later faced a challenge. However, in the instant matter, no approval proceeding was brought in the six years which elapsed before the instant application made before Support Magistrate Troy. Respondent also argues that Support Magistrate Troy's expressed discomfort with section 516 agreements is not indicative of a personal bias but instead reflects the valid concerns of the Family Court, Federal Court and the legal community as previously evinced in  Williams v. Lambert, 902 F. Supp. 460(S.D.N.Y. 1995) and in a pending New York State Assembly bill. ³

Based upon the Court's review of the record, the legislative history of Family Court Act section 516 and the relevant case law, there is no legal basis to disturb the order of the magistrate. As discussed  supra, the Court of Appeals, in  Clara C. V. William L., 96 N.Y.2d 244 (2001), held that a section 516 agreement is not binding unless and until the Family Court has independently determined that adequate provision was made for the child. Because the parties' agreement was never previously reviewed or presented for approval by the Family Court, it never became effective under the statute and it was not an abuse of the magistrate's discretion to so find. Furthermore, because the agreement never become binding under section 516, it was proper for the magistrate to consider the parties' current circumstances in order to determine whether the agreement was adequate and fully secured. Support Magistrate Troy's observation that no instrument had been constructed to guarantee income to the child (Transcript of October 21, 2008, at page 21, lines 12-19) and his inquiry about whether the agreement presently makes adequate provision for the child was therefore consistent with the requirements of the statute. Support Magistrate Troy's conclusion that respondent does not currently earn sufficient income or have the resources to comply with an agreement which obligates him to pay $7,000 per month in support is also consistent with the prevailing statutory and case law.  Matter of Storm v. None, 57 Misc. 2d 342, 291 N.Y.S.2d 515.

The Court has reviewed petitioner's remaining objections and finds them unavailing. The Family Court is a court of limited jurisdiction and is not in a position to determine whether the parties' agreement is an enforceable contract notwithstanding its failure under Family Court Act section 516. This Court therefore does not reach those portions of petitioner's objection that argue that the agreement should be enforceable because respondent has already received the benefit of the bargain.

Petitioner's objection is denied.

This constitutes the decision and order of the Court.

1. Subsequent to the entry of the instant decision, the Appellate Division, First Department considered the question of whether a petitioner is precluded from seeking modification of the terms of a Family Court Act section 516 agreement which had previously been reviewed and approved by the court. In Matter of Barbara N. v. James H.N., 2009 Slip Op 02478, decided on March 31, 2009, the First Department did not reach the issue of the constitutionality of the statute but noted that "to the extent the statute precludes attempts to reverse support agreements for nonmarital children, its constitutionality is questionable." Although the facts and the procedural posture of Matter of Barbara N. V. James H.N. are substantially different from the case herein, this Court notes that neither the legal nor the factual analysis of the Appellate Division in that matter compel a different result than the one reached here.

2. In the Recitals section of the Agreement, respondent acknowledges paternity of the unborn child. It is possible that this acknowledgment by respondent actually renders the parties' agreement a support agreement between unmarried parents of a subject child, which would be governed by the Child Support Standards Act, notwithstanding the Agreement's reference to Family Court Act section 516.

3. Over the course of many years, bills have been introduced in the New York State Legislature seeking to repeal Family Court Act section 516. The Legislature has declined to do so. As of the date of this decision, the most recent attempts to repeal the statute, Assembly Bill A2578 and Senate Bill S02975, have not been enacted.