Law News

Divorced Man Not Father, but Must Support Child

Judge rules that furthering the 'self interests of the parent' is not a good reason to abandon child support payments

by Bruce Balestier
New York Law Journal
September 3, 1999

A divorced man who paid child support for 13 years before learning that he was not the child's biological father still must continue to make support payments, a Queens Supreme Court justice has ruled.

Dismissing Joseph Ocasio's application to terminate child support as "no more or less than an economic consideration," Justice Phyllis Orlikoff Flug declared that the paramount concern in such a case must be the best interests of the child.

"While the blood testing settles the biological issue of the child's paternity, the law must address an entirely different concern," Justice Flug wrote in Ocasio v. Ocasio. "It will not allow a disclaimer of paternity and subsequent bastardization of a child when the sole reason for doing so is to further the self interests of the parent (i.e., to avoid paying support)."

The judge also found that the doctrine of equitable estoppel is applicable in a paternity proceeding to safeguard a child from potentially destructive challenges to his or her legitimacy.

The marriage between Joseph and Marlaine Ocasio began in 1976 and effectively ended with their separation in 1979. While pregnant, Ms. Ocasio received an order of child support at a hearing in Family Court, during which Mr. Ocasio did not raise the issue of paternity.

In June 1980, the child, Joseph Michael Ocasio, was born. A judgment of divorce was entered in 1982, declaring the child to be of the marriage. Mr. Ocasio also failed to raise the issue of paternity during the divorce proceedings.

He obtained a second support order in Family Court in 1990, which increased payments to their current bi-weekly amount of $272. Mr. Ocasio again failed to raise the issue of paternity at that time.

But in September 1993, Mr. Ocasio moved in Supreme Court for an order to force Ms. Ocasio and the boy, then 13, to submit to a blood test. The motion was granted on default in March 1994, and the results of the test excluded Mr. Ocasio from being the father.

His motion in Family Court to have the child declared not to be of the marriage was denied for lack of jurisdiction. But his renewal of the motion in Queens Supreme Court in February 1996, seeking the termination of the child support provisions, was heard by Justice David Goldstein, who appointed a Law Guardian and ordered a hearing to determine whether severing or continuing the relationship with Mr. Ocasio would be in the best interests of the child, who is now 19 but does not yet support himself.

CHILD'S BEST INTERESTS

The case was then referred to Justice Flug, who held a hearing on the matter this June. In her decision, Justice Flug reacted scornfully to Mr. Ocasio's assertion that the termination of child support would have no adverse impact on the child's financial condition, calling the suggestion "preposterous, incredible and without substance."

Justice Flug concluded that Mr. Ocasio had "assumed the status of father" to the child by allowing his name to be placed on the birth certificate, failing to contest the judgment of divorce, failing previously to raise the issue of paternity and making support payments for 13 years before seeking redress.

"To permit defendant's denial of paternity at this time would not only stigmatize the child as illegitimate, but would reward the defendant for the poor judgment of the plaintiff, at the sole expense of the 'innocent child,'" she wrote. "This the court will not do!"

Legal Aid Society attorneys April A. Newbauer and Susan E. Gibson-O'Gara of Kew Gardens represented Marlaine Ocasio. Paul V. Nuccio of Brooklyn represented Joseph Ocasio. Audrey Sager of Sager & Gellerman in Forest Hills served as Law Guardian.

Copyright 1999 NLP IP Company -- American Lawyer Media.