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>Like marriage itself, the laws of marriage are in constant flux. But one thing that has not changed is that a child born to a married woman is presumed to be the child of her husband. And it is his name that appears on the birth certificate as the father. Paternity tests and now DNA can rebut and prove that another man is actually the biological father but .without proof to the contrary, there is a presumption of "legitimacy," which has been described as "one of the strongest and persuasive known to the law."
The law was reaffirmed earlier this month in a new and tantalizing scenario by New York State Supreme Court Appellate Division in Manhattan. Nina (formerly Sebastiana) Viola Montepagani, a resident of Albany, commenced a lawsuit against the New York City Department of Health, Office of Vital Records seeking to change her birth certificate. Her goal was "to correct the record," by removing the name of Joseph (Giuseppe) Viola from the document. Viola, who was 60 when Montepagani was born, raised her and was indeed married to her mother, Anna Aliano Viola, but, Montepagani maintained, he was not her biological father. Rather, she claimed that her father was Dr. Sebastiano Raeli, an Italian citizen with whom her mother had had a sexual relationship in Italy, while her new husband was in America awaiting his wife's arrival. The affair took place around the time of the plaintiff's conception, when Anna Aliano Viola was in her late 20s.
The petitioner. Montepagani, wanted the City of New York to remove from her birth certificate the name Viola that had been there since Nina (then Sebastiana) was born on June 24, 1952 in Williamsburg, Brooklyn and leave the line for father blank. In essence, Justice Michael Stallman said, the petitioner was challenging her own legitimacy by asserting that she is the child of a man other than the one her mother was married to at the time of her birth. She would be a child born out of "wedlock," still an unfavored state in the law, even though about 40 percent of babies born today do not have married parents.
Both Stallman of the state Supreme Court and judges on the appellate bench agreed that the petitioner would have to offer "clear and convincing evidence in order to have her ostensible father's name removed from her birth certificate" and to rebut the presumption of legitimacy.
Montepagani relied on things she said her mother told her and letters her mother wrote to Raeli and his attendance at the baby's baptism at St. Nicholas Church in Brooklyn, as well as photos and inscriptions from him to Nina, referring to her as his daughter, to himself as "daddy" (as translated from Italian) and then, with respect to Nina's children, as grandfather. She also claimed that Raeli had told her that she would inherit his fortune.
Another intriguing detail is that Montepagani's parents named her Sebastiana, the female version of Raeli's first name. Ironically, Montepagani changed this to Nina.
None of this was admissible evidence as it could not be authenticated. The Violas were both dead and could offer no evidence by the time Montepagani began her legal action. Raeli was not a party to the lawsuit.
The petitioner also argued that the dates the Violas were apart at the end of 1941 would have made it impossible for them to have conceived Montepagani because she was born full term, which would have placed her conception at a time her mother remained in Italy. Still the court found that there was no evidence that her birth was full term.
Raeli was over 90 at the time the lawsuit was commenced and had no children -- except, perhaps Nina. But she would have no claim to his great fortune unless she could present to the Italian government a birth certificate with the line for the name of the father left blank. With that she could begin the process of proving her claim in Italy.
Montepagani did not use DNA testing to prove that the already-deceased Viola was not her father. If such testing had excluded a genetic connection, Viola's name could have been removed from the birth certificate. While that would not have proved that Raeli was the father, it would have been enough to at least make her claim in Italy.
Montepagani, though, did not offer or request any DNA evidence. There were no DNA samples sought from Raeli either, and New York courts would not have had jurisdiction to compel his cooperation. In the meantime, Raeli has died, and so has the lawsuit.
Stallman dismissed the Montepagani petition in two decisions, which have now been affirmed on appeal. It is unlikely that any other New York or Italian court will hear the case or upset the presumption of married parenthood.
Every year New York City sends of its most troubled teens hundreds of miles away, Far from family, they are confined in institutions that by many accounts are brutal, ineffective -- and expensive. These institutions have been deemed so brutal and ineffective by the federal government that the Department of Justice threatened to take over the system if the state did not make drastic improvements to the quality of care.
Today, Assemblymember Karim Camara is expected to introduce a bill that would remove New York City kids from that system and give the city control over where it sends its juvenile offenders. The legislation, which was drafted in close concert with the office of Mayor Michael Bloomberg, would keep juvenile offenders from being sent to the upstate juvenile detention centers that have been the center of immense scrutiny because of their culture of violence and lack of proper mental health care.
The city's legislation has been hailed by advocates who work with juvenile offenders. They say the bill will keep offenders closer to home and would provide the young people with the specific type of treatment they need rather than using the state's "one type of detention fits all" system.
The bill also leaves questions -- does the city have enough service providers and alternative programs to take care of all its youthful offenders, and what will happen to the state's system if New York City is no longer part of it? The bill will face almost certain opposition from unions that represent staff at the upstate juvenile facilities who see their jobs as under siege.
As of January of this year the state's juvenile detention faculties held around 600 youthful offenders, 400 of them hailing from the five boroughs. Offenders aged 7 to 15 are housed in these detention centers -- 60 percent of them having committed minor offenses such as truancy or graffiti.
Reports have documented nightmarish scenarios within the detention centers where they are held -- cases of physical, mental and sexual abuse by staff. The prevalence of such abuse prompted the Justice Department's threat to take over the system.
Furthermore the facilities are hundreds of miles north of their homes in the city -- leaving the offenders far from the support of their families. And once released detainees seem ill prepared to reenter society.
In his state of the city speech in January, Bloomberg proposed allowing localities control over their youthful offenders and asked Gov. Andrew Cuomo to issue an executive order to make it so.
"The current system is not helping kids, it isn't helping taxpayers and is isn't helping public safety," Bloomberg said at the time. "The bottom line is, I think we all agree we need to stop sending kids miles away from their families and communities. And, instead, authorize the city to fully operate its own juvenile system here in the five boroughs."
Cuomo had other ideas. The governor and Gladys Carrion, commissioner of the Office of Children and Family Services", were already at work to reduce the size of the juvenile justice system around the state -- closing underutilized facilities, recommending that judges sentence low-risk offenders to alternative treatment and working to retrain staff to better care for offenders. The budget process, incorporating many of these changes had already begun.
In other words, Bloomberg's plan came at the wrong time. "I think people were already focused on the budget when this was introduced," said Marsha Weissman executive director of the Center for Community Alternatives who was also a member of Gov. David Paterson's Task Force on Transforming Juvenile Justice. "The work Gov. Cuomo and Commissioner Carrion are doing was good, and I think people thought, 'We've made so much positive progress,' that it was hard to deal with the next step."
Despite the early setback, Bloomberg's office continued working with legislators on the issue. "I don't think the governor has rejected the idea," said one Bloomberg administration figure early last week, "I just think he is busy." The administration remained "optimistic."
Then according to Camara the Bloomberg administration took note of an op-ed he penned for the May 3 edition of the Amsterdam News titled Juvenile Justice Needs Reform. In the article Camara detailed what he sees as the injustices of the state system and how he thought it should be reformed. The Bloomberg administration contacted him, and they began work on a bill.
Camara's bill which is officially a "New York City Program Bill" will introduce Bloomberg's concept to the legislature.
The measure, titled the Juvenile Justice Realignment Act, would allow a placement agency"designated by the mayor of the city of New York to oversee the care, maintenance and supervision of adjudicated juvenile delinquents or juvenile offenders." It would operate and transfer youth to secure, medium security and non-secure facilities in the city. The agency would, "establish, operate and maintain treatment programs and other services for youth placed with or committed to the placement agency and programs for the care of conditionally released youth.”
The debate over the bill will start in the Democrat controlled Assembly. Calls to Assembly Speaker Sheldon Silver's office for comment were not returned.
Amy Paulin from Westchester, head of the Assembly committee on children and family, said she basically supports the legislation.
"If kids in trouble need treatment we should keep them home and near their family. We want to do this. The system is shrinking and it will continue to shrink but we need to make sure we have the right services in place," she said.
Paulin, however, is concerned that the city may not have enough services for all of its juvenile offenders. "There aren’t enough services in New York City right now," she said. "They use Westchester services because they are close, but there are a lot of things that need to be put in place before we pull the plug."
Camara said he is confident the city will be able to care for its population of troubled youth. "I believe we have enough existing services in New York City. We have some great nonprofits and alternative sentencing programs," he said.
Advocates say that the city already has a record of nurturing nationally recognized alternative-sentencing programs. These, they say, cost far less than paying for a youth to stay in a state run facility. According to Weissman, detaining a child in the state system costs over $200,000 a year while alternative programs cost $10,000 to $20,000 a year.
Alternative sentencing programs also boast of dramatically lower recidivism rates. Some 80 to 90 percent of young people held in state programs commit further offenses compared to a little over 20 percent in alternative programs.
Weissman is perhaps most enthusiastic about how local control could aid in overseeing the quality of the programs. While the current situation places kids from the city hundreds of miles away from the community and people that care about their progress, the new system would keep kids near their families, under the watchful eye of local government. Weissman thinks this would make it much easier for parents to keep track of their children and hold local officials accountable.
Weissman sees a place for the state to monitor the quality of the city’s programs. Camara’s bill does not specifically call for that, but he said things could change as the legislation gains sponsors and makes its way through committees."I am open to it," said Camara. "We will be having lots of discussions about the bill going forward. I could see the state having a role overseeing the city system just as the federal government oversees the state's."
The Civil Service Employees Association"is already irate about the loss of jobs in upstate communities due to the shrinking of the juvenile justice system and planned prison closures. This Bloomberg administration's move will likely draw more outcry. Union heads have argued that communities could be put in danger by "non-secure" facilities in their neighborhoods. They say employees in the state facilities do dangerous work that keeps the state free from dangerous young offenders.
"Renee Greco was murdered by clients, and these are the people they want to move into the communities," Steve Madarasz, spokesman for the association told the Gazette last year, referring to a woman who was killed by escaped juvenile offenders. "We believe the public shouldn't be put at risk, the staff shouldn't be put at risk and even the clients shouldn't be put at risk."
Whatever the merits of the union's arguments, the tide seems be turning aganst its members.
Cuomo made it clear in his budget speech earlier this year that he is concerned about the upstate economy but he will not keep people employed to watch empty prisons and detention centers. "If people need jobs, let’s get people jobs," he said. "Don’t put other people in prison to give some people jobs. Don’t put other people in juvenile justice facilities to give some people jobs. That’s not what this state is all about, and that has to end this session."
It is too early to judge what kind of support Camara's bill will receive. The office of Assembly Speaker Sheldon Silver, the office of Senate Majority Leader Dean Skelos and the governor's office did not respond to requests for comment. A spokesperson for the Office Of Child and Family Services said they would not comment until the bill has been introduced and they have had time to review it.
The fact that the bill only deals with New York City may drive off support from legislators who hail from outside the five boroughs.
Sen. Neil Breslin, who represents Albany, said that he supports the idea. "I would defer to the people from New York City," said Breslin. I think people from the city should be closer to their families." He added, "I don't think there will be a great outcry against it."
Weissman said she hopes there will be progress made this year. "I think the issue is still on the table for this year and if it doesn’t get passed this year I think we’ve done a good job laying the groundwork for future discussion."
Camara said that one thing is clear to him, "Regardless of the outcome of this bill we have to do something about those facilities. We have to change the juvenile justice system."
Growing up in Mexico City, Ricardo Muniz dreamed about being able to just be himself someday. He always knew he was gay and was constantly subject to anti-gay slurs or even death threats.
"It's difficult to come out in Mexico," said Muniz. "I don't remember a happy childhood."
At 15, shortly after he came out, his mother was so concerned about his well being that she sent him to New York to live with his aunt. "I heard there is justice and people can be who they are regardless of their sexual orientation," said Muniz, now 25. "I wanted to start a new life in America, to be free."
But he didn't realize that the real America differed from the one he imagined. After spending 20 months in detention, Muniz now faces deportation back to Mexico -- even though he has not been convicted of any crime.
Muniz is one of many immigrants who face deportation after being caught up in the criminal justice system -- regardless of the charges against them and regardless of whether they are guilty. Under a federal program called the Criminal Alien Program, New York City law enforcement officials give the names of all people arrested to U.S. Immigration and Customs Enforcement, known as ICE. If ICE identifies someone as an immigrant, then the agency asks to transfer the person to federal facilities where the immigrant remains pending deportation hearings.
The city Department of Correction has given names to the federal government and allowed for the transfer of immigrants -- despite Mayor Michael Bloomberg's outspoken support for immigration and his issuance of Executive Order 41, which prohibits city workers from inquiring about immigration status when the people seek services from a city agency or witnesses a crime.
The trouble for Muniz began in July 2009 when he and his friends were attacked with bats and belts after a quarrel with a patron at a bar in Brooklyn, according to the report Muniz filed with the police. He suffered serious injury in his face and body.
"Ricardo was a victim of a hate crime," said Karina Claudio-Betancourt, a coordinator and interpreter at Make the Road New York, an advocacy group serving low-income people.
During the fight, the patron, a 65-year-old man, fell and injured his head, resulting in a lengthy hospital stay. A few weeks later, the police arrested Muniz and his friends, charging them with assault.
That began a nightmare that still haunts Muniz. He was held at Rikers Island pending trial because the U.S. Immigration and Customs Enforcement placed a detainer on him. A detainer is the document the federal government issues to a local jail or correctional facility when ICE wants custody of an immigrant, legal or illegal, in that facility for purposes of instituting removal proceedings.
"I had double difficulties because I am gay and Latino," said Muniz of his time in jail. "I was attacked numerous times and verbally abused. People stole my food and hit me because of my sexual orientation."
"It scarred me psychologically," added Muniz, who broke down several times during the interview. "This is the experience I would not wish on anyone."
In late March, he was exonerated and released, ending 20 months in jail for a crime that he never committed. But Muniz now faces deportation because he is undocumented.
Generally, when a deportable immigrant is released from jail because he or she finished his sentenced or was found innocent, the jail receives a request from ICE to detain the person for 48 hours. This gives ICE enough time to transfer this person to a federal facilities, many far from New York City. Once the arrestees are transferred to remote facilities, the chances of getting legal help become slim. Although the Criminal Alien Program may focus on undocumented immigrants, a report by the Immigration Policy Council found, it "identifies legal immigrants as well as unauthorized immigrants who are deportable based on the current crime or a prior crime."
Many of the detention facilities are in poor conditions and provide inadequate access to medical care or communications. According to the ICE's own figures, 120 immigrants died in detention between 2003 and March 2011.
The city does not have to comply with the federal government's request to hold the immigrant, said Bridget Kessler, a clinical teaching fellow for the Cardozo Law School Immigration Justice Clinic. She said a detainer from ICE is non-binding. In fact, many cities around the country have chosen not to participate in ICE's efforts, such as Berkeley, San Francisco, and Chicago.
In an op-ed column in the New York Times by Manhattan Borough President Scott Stringer and Andrew Friedman, a co-executive director of Make the Road New York, called on Bloomberg to follow these cities and change New York's policy.
Most of the immigrants transferred to federal custody and then deported "have their due process rights violated," they wrote. "The process is too rushed to ensure proper identification of status and identity, let alone confirmation of criminal background."
Stringer and Freidman charge that New York's involvement in the policy costs the city millions of dollars and deters immigrants from reporting crimes. But they say, "Perhaps what is most disturbing is that sometimes legal immigrants who have been convicted of no crime are caught up in this system."
The column also mentions the pressure on local governments to adopt Secure Communities, a program designed to identify immigrants in U.S. jails who are deportable under immigration law. Under Secure Communities, participating jails submit fingerprints of those arrested not only to criminal databases, but to immigration databases as well. The program is scheduled to be in every jail in the country by 2013.
Meanwhile, to counter the growing trend of adopting programs like Criminal Alien Program and Secure Communities, the Association for the Bar of the City of New York in February submitted a proposal to limit the collaboration between the city Department of Correction and ICE. The association instead calls for the city to allow immigrant New Yorkers to face deportation charges here, rather than in remote places far away from supportive family members and available pro bono or otherwise affordable legal counsel.
The mayor’s office, though, has defended its decision to cooperate with ICE, saying it is a public safety issue.
"The mayor’s Executive Order 41 allows immigrants to gain access to city services and report crimes with no fear of being questioned about immigration status,” John Feinblatt the mayor’s chief policy advisor and criminal justice coordinator wrote in a letter to the Times. "But when it comes to immigrants arrested for criminal activities, the executive order ensures cooperation with federal authorities."
Raising the specter of terrorism, Feinblatt continued, " As our country has learned tragically, when government agencies fail to cooperate and share information, not only is public safety compromised, so is national security."
To Muniz, such statements are ironic.
"I am a hard worker. People like me should be protected," he said. "In this country, you are supposed to be innocent before proven guilty. But it is the other way around."
Despite his misfortune, he has been luckier than most detainees. One of his friends also involved in the fight was deported before any trial. According to a report titled Jailed Without Justice released by Amnesty USA, more than 80 percent of immigrant detainees do not have legal representation.
"There are many people out there who cannot speak out," said Muniz. "Many of them are innocent. They are hardworking people just like everybody else."
Muniz thanked his mother for seeking help from non-profit organizations when his was in jail. The Cardozo Law School Immigration Justice Clinic has submitted a request asking ICE to release him because of the harsh circumstanced that he has been subject to and to stop the deportation proceeding. ICE granted the first request but denied the second.
Muniz is due back in court for his status hearing soon. Currently he is in a program called Alternative to Detention and is required to report to ICE on a regular basis.
Larry Tung is a Brooklyn-based journalist and media artist.