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MERRICK v. MERRICK

November 16, 1977

David MERRICK, and Davida Margaretha Merrick, by her father David Merrick, Plaintiffs,
v.
Etan MERRICK, Louis J. Lefkowitz, as Attorney General of the State of New York and Hugh L. Carey, as Governor of the State of New York, Defendants



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

 BRIEANT, District Judge.

 Defendants have moved, pursuant to Rules 12(b)(1) and 12(b)(6), F.R.Civ.P., to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Court concludes that the complaint must be, and it is, dismissed as to all defendants.

 Plaintiff is the well-known theatrical and movie producer, David Merrick, *fn1" who sues under 42 U.S.C. § 1983 on his own behalf and that of his minor daughter, Davida Margaretha Merrick (referred to by her parents, and hereinafter, as "Rosebud"). Defendants are Etan Merrick, the former wife of Mr. Merrick and petitioner in a pending New York State Family Court proceeding against Mr. Merrick for support, child custody and declaration of paternity; *fn2" Hon. Louis J. Lefkowitz, Attorney General of the State of New York (hereinafter referred to as the "Attorney General"); and Hon. Hugh L. Carey, Governor of the State of New York (hereinafter referred to as the "Governor").

 The complaint pleads a claim under 42 U.S.C. § 1983, in that defendants are, "under color of State law, statute, custom and usage . . . preventing plaintiffs from obtaining a judicial determination of custody in the New York State courts in accordance with plaintiffs' Constitutional right to due process of law and equal protection of the law." (Complaint, para. 30).

 Unconstitutional discrimination and denial of due process are claimed to exist as the result of a supposed (rebuttable) presumption enforced by the New York courts by which the mother's right to custody of an illegitimate child is said to be considered superior to that of the father, based not on the child's best interests or the relative fitness of the mother and father (Complaint, para. 14), but rather because of improper discrimination by reason of illegitimacy and sex (Complaint, para. 17). *fn3" In addition, Mr. Merrick claims that, although the New York Family Court Act § 513 provides that each parent of an illegitimate child is liable for the child's support, as the statute is applied, the entire burden of support of an illegitimate child is placed upon the father.

 Finally, Mr. Merrick asserts that Mrs. Merrick relies on the claimed discriminatory presumption to extort money from Mr. Merrick for her own support under the pretense of seeking support for Rosebud.

 Mr. Merrick also alleges, in some detail in the complaint, that Mrs. Merrick is unfit to have custody of Rosebud. *fn4"

 Plaintiff seeks a declaratory judgment, declaring the aforementioned state presumption as to custody of illegitimate children unconstitutional, and awarding him custody of Rosebud. He also seeks an injunction against defendants "enjoining them against the enforcement by the New York courts" of the custody presumption. (Complaint, at 8).

 Jurisdiction is asserted under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. *fn5"

 This Court may adjudicate only pleaded claims which present a "case or controversy" within Article III of the Constitution and which fall within a Congressional grant of jurisdiction. Whether the motion is treated as one to dismiss on the ground of lack of subject matter jurisdiction, or for failure to state a claim, the complaint must be read in a light most favorable to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).

 Motion by the Attorney General and the Governor

 It is indeed the duty of the Attorney General to "prosecute and defend all actions and proceedings in which the state is interested . . .." [N.Y.Exec. Law § 63(1)]; and it is the duty of the Governor to "take care that the laws are faithfully executed" (N.Y.Const. Art. IV, § 3). The Attorney General has no interest in the outcome of particular contested child custody and support proceedings in the state courts. He does not appear therein, and is not the protagonist of the father or mother. He has no duty to enforce any order made in such an action. The Governor's general constitutional duty to enforce ...


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