DG v. " HERMANEZ"

PANKEN, J.

Max Rubin for petitioner. "Pamela" is the granddaughter of the respondents herein. The petition is made by her mother on her behalf. The respondents are the parents of the father of the child who is not within the jurisdiction of this court. He resides in a foreign State and cannot be reached by the process of this court on this petition. It is claimed by the petitioning mother that the grandparents are chargeable with the support of this child since her father is without the State and cannot be reached in due course by the process of this court. The mother and father were divorced and the petitioning mother is married again. The stepfather of the child knew of the existence of "Pamela" at the time he married her mother. Under subdivision 1 of section 101 of the Domestic Relations Court Act of the City of New York, the father of a child is primarily chargeable with his support. Under subdivision 2 of the same section, where the father is dead or cannot be made to respond for the support of his child, the mother is secondarily chargeable with such support. The grandparents of a child are chargeable tertiarilly with the support of a to the law as it has been laid down in the Domestic Relations Court Act for the Children's Court. The law needs change; certainly it needs an amendment to subdivision 5 of section 101. It certainly cannot be considered fair in many instances for a child to be exposed to a different status in the household from other children therein. No differences between children in a household is warranted, nor should it be tolerated. The theory upon which the law was amended and now holds a stepfather chargeable with the support of his stepchild is that his wife by virtue of the marriage had ended completely her ability and capacity to take care of her dependents, she giving to him her time and efforts and housewifely duties. Because of that she is unable to provide for the children as required in subdivision 2 of section 101. A grandfather may not claim the earnings of his grandchild while a stepfather might very well do so, at any rate claim the earnings of his stepchild until he reaches the age of 21. Adele Stuart Meriam in a little volume titled, "The Stepfather in the Family" (published by the University of Chicago Press), under the heading, "Right of the Stepfather to his Stepchild's Earnings" says (p. 43), "As a sort of balance to his obligation to support his child, the father is given the right to his child's services, or to the earnings of his child who works for wages outside the home." The value of the services of the child may be greater or less than the cost of the support. In a suit brought in the State of Illinois to recover for services rendered a stepfather, the court though the stepfather was not obligated under the law at that time and in that State to support a stepchild, held that while the stepfather has no obligation to support his stepchildren, he may voluntarily assume that obligation, and by so doing create a parental relationship, and so, would be entitled to the stepchild's services during minority. The earnings of the stepchild during that period would accrue to the stepfather. A grandparent, unless the grandchild is a member of the household without any obligations elsewhere, would not be entitled to either the services or the earnings of his grandchild during minority. In the opinion of the court the stepfather is obligated to support his child before recourse can be had to the grandparents. Temporary order heretofore made is vacated and the case is placed on the Reserved Generally Calendar. [*] Names used herein are fictitious for the purposes of publication.