Summary
In Matter of Ricky M. v. Sharon B. (49 A.D.2d 1035) we reversed and remitted the matter to the Onondaga Family Court for a hearing on the habeas corpus petition.
Summary of this case from Matter of MitchellOpinion
October 31, 1975
Appeal from the Onondaga County Family Court.
Present — Marsh, P.J., Cardamone, Mahoney, Del Vecchio and Witmer, JJ.
Order, insofar as it dismissed petition for a writ of habeas corpus, unanimously reversed and matter remitted to Onondaga County Family Court for a hearing in accordance with memorandum, and otherwise order affirmed, without costs. Memorandum: Appellant's petition for a writ of habeas corpus and his petition under article 5 of the Family Court Act to have himself declared the father of an illegitimate child were dismissed by Family Court "on the ground that the court lacked jurisdiction". Under Stanley v Illinois ( 405 U.S. 645), as interpreted by Matter of Malpica-Orsini ( 36 N.Y.2d 568), certain minimal rights are extended to the natural father of an illegitimate child. Section 70 of the Domestic Relations Law confers on a parent a right to maintain a habeas corpus proceeding. Since the petition alleges that appellant is a parent, the proceeding could not be dismissed. The habeas corpus proceeding is an appropriate one in which appellant may establish his status as a party entitled to maintain a habeas corpus proceeding and as a natural father entitled to his constitutional rights under Orsini and Stanley. The Family Court properly dismissed appellant's paternity petition, since under article 5 of the Family Court Act an unwed father is not authorized to bring such proceeding. No constitutional challenge is made of the restriction of authorized petitioners; and we do not decide that issue.