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and education of children born out of wedlock, and repealing certain pro
visions of laws inconsistent therewith.1 Became a law April 1, 1925, with the approval of the Governor. Passed,
Section 1. Chapter nineteen of the laws of nineteen hundred and nine, entitled "An act relating to the domestic relations, constituting chapter fourteen of the consolidated laws,” is hereby amended by adding a new article, to be article eight, to read as follows:
PROCEEDINGS TO ESTABLISH PATERNITY.
cation. 121. Agreement or compromise. 122. Proceeding to enforce obligation of the father. 123. When defendant is arrested. 124. Adjournment of trial. 125. Effect of death or absence or insanity of mother. 126. Trial. 127. Order. 128. Payment to trustee. 129. Security; commitment; probation. 130. Contempt process. 131. Continuing jurisdiction. 132. Support by mother. 133. False declaration of identity. 134. Probation. 135. Jurisdiction. 136. Appeals. 137. Prosecuting official. 138. General provisions.
139. Construction. § 119. Definitions. 1. A child born out of wedlock is a child begotten and born: (a) Out of lawful matrimony; (b) while the husband of its mother was separate from her a whole year previous to its birth; or (c) during the separation of its mother from her husband pursuant to a judgment of a competent court.
2. When the word "child” is used in this article it shall refer to a child born out of wedlock.
3. When the word "mother" is used it shall refer to the mother of a child born out of wedlock.
$ 120. Obligation of parents; liability for support and education. 1. The parents of a child born out of wedlock are liable for 1 See L. 1925, chs. 293, 515, 533, 558, post.
the necessary support and education of the child. They are also liable for the child's funeral expenses. The father is liable to pay the expenses of the mother's confinement and recovery, and is also liable to pay such expenses in connection with her pregnancy as the court in its discretion may deem proper. In case of the neglect or inability of the parents to provide for the support and education of the child, it shall be supported by the county, city or town chargeable therewith, under the provisions of the poor law.
2. If the father dies, an order of filiation or a judicially approved settlement made prior to his death shall be enforceable against his estate in such amount as the court may determine, having regard to the age of the child, the ability of the mother to support and educate it, the amount of property left by the father, the number, age and financial condition of the lawful issue, if any, and the rights of the widow, if any.
§ 121. Agreement or compromise. 1. An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is fully secured by payment or otherwise and has approved said agreement or compromise. Provided, however, that in the county of Erie all such agreements or compromises shall be approved by the county court of said county. The approval of the court shall not be required for an agreement or compromise made by a duly constituted official of a city under specific power heretofore granted by special act of the legislature applicable only to such city.
2. No agreement or compromise under this section shall be approved by the court until notice and opportunity to be heard has been given to the superintendent of the poor of the county or the overseer of the poor of the city or town where the mother resides or the child is found.
3. The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.
$ 122. Proceeding to enforce obligation of father. 1. A proceeding to compel support and education in accordance with this article may be brought by the mother, or her personal representative, or, if the child is or is likely to become a public charge on a county, city or town, by a superintendent of the poor of the county, or an overseer of the poor of the city or town where the mother resides or the child is found. Complaints may be made in the county where the mother or child resides or is found or in the county where the putative father resides or is found. The fact that the child was born outside of the state of New York shall not be a bar to entering a complaint against the putative father in any county where he resides or is found, or in the county where the mother resides or the child is found. After the death of the inother or in case of her disability, it may also be brought by the child acting through a guardian or next friend.
2. Proceedings to establish the paternity of the child may be instituted during the pregnancy of the mother or after the birth of the child, but shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been acknowledged by the father in writing or by the furnishing of support. Provided, however, that a superintendent of the poor of a county or an overseer of the poor of a city or town shall be empowered to bring a suit in behalf of any child under the age of sixteen who is or is liable to be a public charge.
3. The complaint shall be made to, and for the purposes of this article jurisdiction is conferred upon, the children's court in the counties where such courts nave been established under the chil. dren's court act of the state of New York; the countv court in Chautauqua county, Ontario county, Monroe county, and Erie county, outside of the city of Buffalo; the court heretofore exercising jurisdiction in bastardy cases in the cities of New York, Buffalo and Syracuse.
4. The complaint shall be in writing, or oral and in the presence of the complainant reduced to writing by the judge or the clerk of the court. It shall be verified by oath or affirmation of complainant.
5. The complainant shall charge the person named as defendant with being the father of the child and demand that he be brought before the court to answer the charge.
6. The court shall issue a warrant for the apprehension of the defendant, directed to any officer in the authorized to execute warrants, commanding him without delay to apprehend the alleged father and bring him before the court, for the purpose of having an adjudication as to the filiation of the child, and such warrants may be executed in any part of the state. But in the discretion of the court, a summons may be issued as in civil cases, instead of a warrant. Such summons shall be personally served as directed by the court.
§ 123. When defendant is arrested. 1. When the defendant is arrested he shall be taken before the court issuing the warrant, or, if he be arrested in another county, before the county judge, the judge of the children's court, or a magistrate within that county. The court issuing the warrant or said judge or magistrate shall take from the defendant an undertaking in an amount not less than five hundred dollars with surety in the form of a commercial surety bond or personal security approved by the court or cash or liberty bond collateral to the effect:
a. That, if the suit is instituted by the public authorities as provided in section one hundred and twenty-two, paragraph one, the defendant will indemnify the county or city or town where the child was or may be born and every other county, city or town against any expense for the support and education of the child or for the support of its mother during her confinement and recovery, and that he will pay any order of filiation that may be made or that the sureties will do so; or
b. That he will appear and answer the charge at the court which issued the warrant and obey its order thereon.
2. If a summons has been issued the defendant shall be required to appear in the court where the complaint has been made.
3. When the defendant is arrested in another county and does not give security as provided in paragraph one of this section, he shall be taken before the court which issued the warrant.
4. When either of the undertakings mentioned in paragraph one of this section is given, the court issuing the warrant or the judge or magistrate shall discharge the defendant and shall indorse a certificate of the discharge upon the warrant. If the defendant has been arrested in another county, the judge or magistrate before whom he has been taken shall deliver the warrant and the undertaking, cash or liberty bond collateral, to the officer, who shall return it to the court issuing the warrant, by which the same proceedings shall be had, as if it had taken the undertaking:
5. If the defendant does not give an undertaking as provided in paragraph one of this section the court issuing the warrant may commit him to jail to be held to answer the complaint.
$ 124. Adjournment of trial. The court, on application of either party, on good cause shown, may grant such adjournments as may be necessary. When the adjournment is granted upon request of the defendant, the court shall require that the defendant be bound or be held in jail until the trial and may so require when the adjournment is granted at the request of the complainant.
$ 125. Effect of death or absence or insanity of mother. If, after the complaint has been made, the mother dies or becomes insane or cannot be found within the state, the proceeding does not abate, but the child may be substituted as complainant.
§ 126. Trial. 1. The trial shall be by the court without a jury. Both the mother and the alleged father shall be competent to testify but the alleged father shall not be compelled to give evidence, and if either gives evidence he or she shall be subject to cross examination. The court may exclude the general public from the room where proceedings are had, pursuant to this article, admitting only persons directly interested in the case, including officers of the court and witnesses.
2. If the defendant fails to appear, the security for his appearance shall be forfeited and shall be applied on account of the payment of the order of filiation, but the trial shall proceed as if he were present; and the court shall upon the finding of the judge make such orders as if the defendant were in court.
§ 127. Order. 1. If the finding be against the defendant, the court shall make an order of filiation, declaring paternity and for the support and education of the child.
2. The order of filiation shall specify the sum to be paid weekly or otherwise, until the child reaches the age of sixteen. In addition to providing for the support and education, the order shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement and recovery; for the funeral expenses if the child has died; for the support of the child prior to the making of the order of filia
tion; and such expenses in connection with the pregnancy of the mother as the court may deem proper.
§ 128. Payment to trustee. The court may require the payment to be made to the mother, or to some person or corporation to be designated by the court as trustee, but if the child is or is likely to become a public charge on a county, city or town, the superintendent of the poor of that county or the overseer of the poor of that town shall be made the trustee. The pay. ment shall be directed to be made to a trustee if the mother does not reside within the jạrisdiction of the court. The trustee shall report to the court annually, or oftener, as directed by the court, the amounts received and paid over.
§ 129. Security; commitment; probation. 1. The court may require the father to give security by bond, with sufficient sureties approved by the court, for the payment of the order of filiation. In case the action has been instituted by the county superintendent of the poor or the overseer of the poor, the defendant shall also be required to give security that he will indemnify the county, city or town whero the child was or may be born and every other county, city or town against any expense for the support and education of the child or for the support of its mother during her confinement and recovery, or that the sureties will do so. In default of such security, when required, the court may commit him to jail, or put him on probation. At any time within one year he may be discharged from jail, but his liability to pay the judgment shall not be thereby affected.
2. Where security is given and default is made in any payment the court shall cite the parties bound by the security requir. ing them to show cause why judgment should not be given against them and execution issued thereon. If the amount due and unpaid shall not be paid before the return day of the citation, and no cause be shown to the contrary, judgment shall be rendered against those served with the citation for the amount due and unpaid together with costs, and execution shall issue therefor, saving all remedies upon the bond for future default. The judgment is a lien on real estate and in other respects enforceable the same as other judgments. The amount collected on such judgment or such sums as may have been deposited as collateral, in lieu of bond when forfeited, may be used for the benefit of the mother or child, as provided for in the order of filiation.
$ 130. Contempt process. The court also has power, on default as aforesaid, to adjudge the father in contempt and to order him committed to jail in the same manner and with the same powers as in case of commitment for default in giving security. The commitment of the father shall not operate to stay execution upon the judgment of the bond.
§ 131. Continuing jurisdiction. The court shall have continuing jurisdiction over proceedings brought to compel support and education and to increase or decrease the amount fixed by the order of filiation, until the judgment of the court has been completely satisfied.