Vicki B. v. David H.

Cohalan, J.,

dissents and votes to affirm the order, with the following memorandum: I would construe the language “unless paternity has been acknowledged by the father in writing or by furnishing support” as an absolute exception to the application of the two-year Statute of Limitations in subdivision (a) of section 517 of the Family Court Act. In extending the period for commencement of suit by a mother who is a minor, the Legislature specified the time in which suit may be brought after she achieved her majority. The omission of any such limitation with respect to the immediate preceding language concerning an acknowledgment by the putative father implies that none was intended and that an acknowledgment made at any time suffices to remove the bar of the Statute of Limitations. Appellant’s contention that the statute as so construed is unconstitutional because it places an insurmountable burden upon the father to assemble his proof to rebut the petitioner’s allegations concerning their relationship at the time of conception, is without merit. The defect in that contention is that the putative father would only have to assemble proof that the alleged support payments or writing, as the case may be, were not intended as an acknowledgment of paternity, but were furnished for a different reason. Accordingly, the putative father would not have to assemble proof of his relationship with the petitioner at the time of conception to defeat the proceeding. Furthermore, a putative father is protected from spurious claims by the exacting burden of proof placed upon the petitioner to establish at trial by clear and convincing evidence that the writing or the support payments constituted an unequivocal acknowledgment of paternity. The putative father’s exposure to suit is extended only by virtue of his own clear, unequivocal and voluntary acts of acknowledgment, constituting a rational basis for the legislative exception to the two-year Statute of Limitations.