Articles Tagged with Paternity

The New York Family Court Act dictates that paternity proceedings can be initiated any time from the pregnancy of a mother until the child is 21 years of age.  If a party makes a motion for DNA testing, the law provides that the court should order DNA or genetic marker testing unless the court finds, in writing, that the test is not in the best interest of the child due to equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata (a Latin term that means the issue has already been judicially determined).  In any of these instances the court would not allow the test.  As a New York City area, Long Island and Nassau County Child Support Lawyer, I have represented people on both sides of the estoppel issue.  This blog will go into further explanations about equitable estoppel, which I have touched upon in other articles about child support and paternity.

As in most family law cases involving children, the finding to apply equitable estoppel must be found to be in the child’s best interests.  Equitable estoppel is designed to not allow rights to be enforced against someone that would result in fraud or injustice.  Equitable estoppel occurs when someone has held himself out as the father of a child.  Someone may hold themselves out as the father of the child which, can commonly be done by exercising parenting time or providing support.

The highest court in New York State, the New York Court of Appeals has held that it is proper to invoke equitable estoppel to protect an already recognized child and father relationship that is in place.  The case is Matter of Shondel v. Mark D., 7 NY3D 320 (New York Court of Appeals 2006).  The court recognizes a big quandary faced by potential father’s in this case.  If a man has doubts about whether or not he is the father, he has a choice to make before starting the father / child relationship.   He can request a DNA test before assuming the role of father.  This, of course, can have the effect of causing a strain on the relationship between him and the mother.  On the other hand, he can jump right into the role of father and might be precluded from ever getting a paternity test again and being forever defined by the law as the father.  It’s a tough dilemma because a court can later find that it is not in the child’s best interest to allow DNA testing because he has held himself out as the father.  It is not required that the person who holds himself out as the father did so knowing that this representation was false.  If someone, namely the child, justifiably relies on this representation, whether factual or not, estoppel can apply. Continue reading ›

The Uniform Interstate Family Support Act (UIFSA) has been adopted, in some form, by every state in the United States.  New York’s version of the law may be found in the New York Family Court Act Article 5-B.    The Act became necessary since parents and children end up having connections to multiple states.  A mechanism to determine which states have the power to initiate or modify a support order in each particular instance was needed.  The law also provides which state’s law should be applied when looking at child support issues.  New York and Long Island Child Support Lawyers have to sort out interstate support issues on a daily basis.

The child support laws can vary widely from state to state, therefore which state law is being applied is an important determination.  For example, people are required to support their children until age 21 in New York, unless they are sooner emancipated, while in other jurisdictions the age is 18.   The guideline amount of child support to be paid is different from state to state as well.   In New York, the guideline amount of support for one child is based on 17 percent of income while elsewhere different guidelines apply.

If there are proceedings simultaneously going on in two different states, the Act will help deterrmine which state should exercise jurisdiction.  If New York issues a child support order under New York law, New York will continue to have exclusive jurisdiction over the order, provided the child or one of the parties still lives in New York or consent has not been given for another state to assume jursidiction.  New York employers, under the law, are supposed to treat income-withholding orders from another state the same as an order made in New York.  Orders from other states can be enforced by the Support Collection Unit in this state, as long as there is not a contest to enforcing the order without registering it. Continue reading ›

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. Continue reading ›

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