Paternity is a legal declaration that someone is the father of a child in New York. The legal recognition of paternity is required under the law for the establishment of many rights and obligations such as for custody, parenting time, child support, and inheritance to name some of the more common. What sounds like it should be a clear cut determination is not always so straightforward. Since New York has finally recognized same sex marriages, paternity and parentage is a developing area for same sex couples. There are complexities as well for opposite sex couples which require skills for a New York City, Long Island, and Nassau County Family Law Attorney to properly handle.
For example, a married man is presumed, under the law, to be the father of a child born to his wife. Therefore, unless and until there is a legal declaration that he is not the father, or that someone is the father, the man that was married to the mother at the time of the birth of the child is legally the father. If another man files a paternity case concerning the child, the presumed father must receive notice for the case to be able to proceed.
Unmarried parents may establish paternity by both parents duly executing an Acknolwedgement of Paternity which is then recorded with the child’s birth certificate. Recorded Acknowledgments of Paternity are the equivalent of a court order of paternity or order of filiation. Within sixty days after the signing of the Acknowledgment of Paternity either party may file a petition in a New York Family Court to vacate the acknowledgement. After the sixty days, either party can still file a Family Court petition to vacate the acknowledgment but there would need to be fraud, duress, or material mistake of fact. The foregoing rules are applicable to parents that are 18 or older at the time of the signing of the Acknowledgement. There are different time period rules applicable to parents under the age of eighteen of the signing.
To establish paternity for a parent that does not have an acknowledgement of paternity, or for which the married presumption of legitimacy does not apply, a petition in family court may be filed to establish paternity. During the paternity case, the parties can agree to acknowledge paternity. Provided the court is satisfied that the requirements to issue an order of filiation or paternity have been met, the court will declare the paternity of the child. A DNA or genetic marker test can be requested to establish or rule out paternity. Prior to ordering a test, however, the issue of whether or not the legal principle called equitable estoppel applies can be explored.
Equitable estoppel comes into play when the best interest of the child dictate that it would not be fair to order a DNA or gentic marker test based on that someone has held himself out to be the father by conduct such as providing support, food, clothing, necessities, exercising parenting time, acknowledging paternity, or otherwise; support being provided by the potential father. Estoppel can be applied to prevent the DNA test if it is requested by the mother, the potential father, or someone else with an interest in the case. Estoppel may be applied to prevent a man that claims he is the biological father from maintaining a paternity case because someone else is determined to be the estoppel father. If estoppel is found by a court to apply to a person, they will be held to be the parent of the child whether or not they are the biological parent.
After the establishment of paternity in a Family Court case, the court will inquire whether or not there is a request for child support. If there is a request, the case will then shift gears into a child support proceeding. Paternity must be established before a custody and visitation or parenting time case can be maintained by or against someone alleged to be the father. Often the paternity case is the first part of a custody and parenting time petition as well.
Please click around my website and other blog entries for more information about paternity, equitable estoppel, child support, custody, matrimonial cases, family law, mediation and collaborative law. Also feel free to call about your free initial consultation. It would be our pleasure to speak with you about it.