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MATTER GLADYS C. (11/17/69)

FAMILY COURT OF NEW YORK, NEW YORK COUNTY 1969.NY.43519 <http://www.versuslaw.com>; 305 N.Y.S.2d 69; 61 Misc. 2d 381 November 17, 1969 IN THE MATTER OF GLADYS C.,*FN* Stanley D. Bernstein for petitioner. Samuel Rosenblum for respondent. Jacob T. Zukerman, J. Author: Zukerman


Jacob T. Zukerman, J.

Author: Zukerman

 The facts :

This is a motion to dismiss the petition herein. The petitioner had filed a petition on February 24, 1969 alleging that the respondent was the father of a child allegedly conceived between the fall of 1968 and the middle of January, 1969 as a result of sexual intercourse between the parties. On March 10, 1969, the respondent appeared and denied each and every allegation and requested a blood grouping test. Such a test was ordered to be performed on September 9, 1969 after the expected birth of the child.

On or about May 10, 1969 the pregnancy was terminated by the performance of a therapeutic abortion at Columbia Presbyterian Medical Center.

On September 29, 1969 the respondent moved to dismiss the petition on the grounds that the court's jurisdiction had terminated with the termination of the petitioner's pregnancy. The petitioner opposes such motion since she feels she is entitled to an opportunity to establish paternity in order to secure reimbursement for costs of the abortion and other reasonable expenses in connection with her pregnancy as the court in its discretion may deem proper, and requests counsel fees.

The issues are these :

1. Whether the termination of the pregnancy divested the petitioner of her right to proceed with this action.

2. Whether the term "reasonable expenses in connection with her pregnancy" includes the costs of a therapeutic abortion.

3. Whether the petitioner is entitled to counsel fees.

Has petitioner been divested of her right ?

In considering the first issue, as to whether the termination of the pregnancy divested the petitioner of her rights to proceed with this action, it is necessary to consider the nature of the filiation proceeding.

"Bastardy proceedings are purely statutory and were unknown to the common law" (Inman v. Willinski, 144 Me. 116, 118, citing Woodbury v. Yeaton, 135 Me. 147). The question of the nature and character of the rights consequent on paternity proceedings "depends upon construction of the bastardy statute" (Inman v. Willinski, p. 118, citing Rackliff v. Inhabitants of Greenbush, 93 Me. 99), so that the divergent views and conclusions reached in "the few cases dealing with the precise point of concern here -- whether a court may entertain filiation matters initiated after [termination of the pregnancy or the death of the infant] reflect a basic diversity in legislative and judicial approach to the problem and appraisal of the evil sought to be cured." (Ann. 7 ALR 2d 1397, "Effect of death of child prior to institution of bastardy proceedings by mother".)

Even though these proceedings are statutory in nature, since they are remedial the statutes dealing with filiations should be liberally construed. (People ex rel. Smith v. Mc Farline, 50 App. Div. 95, 98.)

It has long been held that, where the child born out-of-wedlock died after proceedings were begun but before the trial of the matter was had, the proceedings did not abate. "The statute is a remedial one. Its purpose is to compel the father of a bastard to indemnify the town for the expenses ...


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