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David S. was declared to be a father by default -- that is, he failed to timely respond to court papers or to appear in court (on a scheduled date) to oppose the relief requested by a child's mother. When he later sought to challenge that determination, claiming to have been imprisoned and that he had been unaware of the matter's pendency, the New York County Family Court refused to vacate that order.  And, that outcome was affirmed by the Appellate Division, First Department.

While that result may initially seem harsh, David was unable to satisfy the legal standards which govern these kind of requests.

Litigants seeking to be released from a court order entered against them in their absence must usually demonstrate the following two elements:

  • an excusable default; and
  • a meritorious defense.

As for the default component, both the Family Court and the Appellate Division were unreceptive to David's "conclusory" claim he had been unaware that the paternity case had been pending against him, and that did now know he could seek legal assistance while incarcerated.  (It was also not helpful to David's cause that the matter had been pending for some five months prior to his imprisonment.)

David also didn't have a meritorious defense to the case.  He was unable to present any competent evidence to counter the woman's sworn testimony that she had sexual relations with him during the "likely period of conception."  His disavowals based on "doubt" and hearsay predicated on "neighborhood rumors" as to the father's identity were insufficient to oppose the claim. Oh, of course, the clincher was David's failure to deny that he had been involved with the child's mother and/or that he had engaged in sexual relations with her.

It certainly wasn't the stork, David. Last time we checked, storks have long since retired from that line of duty.

For a copy of the Appellate Division's decision in Matter of A.C.S. Child Support Litig. Unit v. David S., please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_06478.htm