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Matter of Ricky v. Sharon

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 31, 1975
49 A.D.2d 1035 (N.Y. App. Div. 1975)

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 Mitchell

Opinion

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.


Summaries of

Matter of Ricky v. Sharon

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 31, 1975
49 A.D.2d 1035 (N.Y. App. Div. 1975)

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 Mitchell
Case details for

Matter of Ricky v. Sharon

Case Details

Full title:In the Matter of RICKY M., Appellant, v. SHARON B., Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 31, 1975

Citations

49 A.D.2d 1035 (N.Y. App. Div. 1975)

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