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What’s the law on Paternity in New York?

May 13, 2018

Under New York law, “paternity” is the legal determination that a man is the father of a child or children. This is an issue that regularly arises in family law cases in New York. This legal parental determination is necessary and required by law for certain obligations and rights, including but not limited to custody of children, court-approved parenting time, court-ordered child support, and inheritance from parent to child. The legal determination of paternity is not as straightforward and easy to resolve as it might seem to be on the surface. There are a number of complex issues that must be resolved when this determination is before the court, many of which may require the skill and services of an experienced family law attorney to ensure they are appropriate resolved.

By way of example, under New York law, it is presumed that a married man is the father to any child or children born to his wife during the duration of the marriage. For children born during a marriage, unless and until a there is a legal determination that the husband of the birth mother is not the father of the child or children born during the marriage or that another individual is the father of the children, the husband of the birth mother is deemed by the law to be the father of the children. No other man can file and seek to be declared the father of child of a married mother unless the husband of the woman receives notice of the case.

It, of course, possible for unmarried couples to establish the paternity of a child if both parents execute an Acknowledgement of Paternity to be recorded with the birth certificate of the child. Once the acknowledgement is recorded with the birth certificate, the certificate holds the same weight as an order of paternity entered by a court of law. However, for a period of sixty days following the original filing of the acknowledgement of paternity, either parent may file a petition disavowing the paternity with the New York Family court and seek to vacate the original acknowledgement document. If the sixty-day window has passed, either parent can still seek to have the acknowledgement vacated by the New York Family Court, but only in cases where the party that seeks the vacation can establish the presence of duress, fraud, or material mistake of fact associated with the original execution and filing of the acknowledgement. However, the sixty-day window rule applies only to parents who were at least eighteen years old at the time the original acknowledgement of paternity was signed. For minor parents, different standards apply and the time period for objecting to the acknowledgment or seeking its vacation vary from those of parents over the age of eighteen.

There are other legal avenues which can be pursued to establish paternity in cases where an acknowledgment of paternity was not filed by the parents and no presumption of paternity via marriage does not apply. In those situations, either parent can seek to establish paternity by filing a petition to determine paternity with the New York Family Court. The filing of the petition will establish a paternity case, during which the parties decide to voluntarily agree to acknowledge the paternity of the child or children in question. If the family court finds the parties have satisfied the requirements for an order of filiation or paternity, the court will enter such an order and declare the party is the father of the child or children in question. However, there certainly are cases where one parent may not wish to acknowledge the paternity or where one or both parties are not certain as to the paternity of a child or children. In those cases, genetic or DNA testing can be required either to establish or to rule out paternity of a child or children. Before the court requires such testing to be completed, it may be necessary for the court to explore whether equitable estoppel applies in the paternity case.

Equitable estoppel is a legal theory that essentially stops a party from making an unfair claim. It often may come into play if the court determines it is not in the best interest of a child or children in a paternity case to have an order for genetic testing or DNA testing requested to exclude someone as a father when that individual has held themselves out to be the father of the child or children in question. In that situation, the “father” has likely provided emotional and financial support to the child, exercised parenting time, developed a parent-child relationship with the child and openly acknowledged paternity. However, estoppel will not be applied to any case where the testing is requested by the child or children’s mother, the potential father, or some other interested parties. It is available and can be applied in cases where another man claims to be the father of a child or children. If a court determines a man is an estoppel father, paternity will be assigned to the man regardless of whether he is or is not the biological father of the child or children in question.

Once a court has officially established the paternity of a child or children in a New York Family Court case, the court will be required to determine whether or not child support has been requested or is required. In cases where child support has been requested, the court will then begin to move towards a child support proceeding. However, child support and child custody proceedings may not move forward until paternity has been officially established and recognized by the court. Paternity proceedings are often times the first stage of proceedings that flow from the initial filing of a custody or child support request petition.

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