Opinion
June 7, 1977
Order and decision of Family Court, New York County, entered September 15, 1976, declaring section 516 FCT of the Family Court Act to be unconstitutional and directing respondent father to pay $135 per week for the support of each child plus $600 a year for college tuition for one child, is unanimously reversed, on the law, without costs and without disbursements, and the matter is remanded to the Family Court for a hearing de novo before another Judge. The Family Court Judge on her own motion declared section 516 FCT of the Family Court Act to be unconstitutional. ( 88 Misc.2d 165.) It was probably inappropriate for the Family Court Judge to determine the statute to be unconstitutional on her own motion. In any event, we think that even in the interests of the children, providing for support by putative fathers of children born out of wedlock presents a sufficiently different practical problem from support of children born in wedlock so as to justify a different statutory treatment for the two classes of children. Having determined that the statute was invalid, the Family Court Judge did not consider or take full evidence on the question of whether the agreement of support had been completely performed.
Concur — Silverman, J.P., Evans, Lane and Markewich, JJ.