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Petitioner Seeks to Modify Custody based on Allegations of Neglect

A New York Family Lawyer said that it is not disputed that a boy was born to a woman. Four days later, the mother and Mr. B. signed an acknowledgment of paternity regarding the boy. The mother and Mr. B. were never married. On June 12, 2008, before the child was one year old, Mr. B. filed a custody petition, alleging that he is the father of the child, that the mother is unfit, mentally unstable, on and off anti-depressants, unstable, violent, neglectful of her other child, and even practices demonic witchcraft.

On September 24, 2008, the support litigation was started when the Department of Human Services — CSEU as assignee of the mother filed a petition for child support against the boy, alleging that Mr. B. was the father of the child based on the Acknowledgment of Paternity previously signed by both the mother and Mr. B. In the support paperwork, the mother indicated there were two possible fathers. This was apparently initially overlooked.

A New York Custody Lawyer said on October 30, 2008, and with both parties represented by counsel, the parties consented to an order of joint custody, primary residence of the child with the mother and periods of visitation with Mr. B.

On November 13, 2008, after settling the custody/visitation matter, the parties appeared in the child support proceeding before Support Magistrate for their first appearance regarding child support. Mr. B. was advised of his right to counsel, and apparently waived that right. The mother appeared with her counsel from and on behalf of the MCCSEU. Mr. B. as a respondent was advised of his right to a GMT but waived that right and made an admission that he was the father of the subject child. A consent order of filiations was orally made that day and an Order of Filiation and Temporary Support was signed by the Support Magistrate setting temporary support at $40.00 per week payable by Mr. B. According to the transcript of the proceedings, the Support Magistrate indicated Mr. B.’s gross was $19,890 approximately, per year. Mr. B. responded to that by saying “approximately”. The case was adjourned to January 6, 2009 for a fact-finding hearing on a final Order of Support. In fact, his gross for the year was $25,894 according to the January 6, 2009 transcript of support proceedings.

At the January 6, 2009 proceeding, Mr. B. continued to assert that he would represent himself, and almost immediately, informed the Support Magistrate that, he has recently become aware that the mother has been telling several people that he is not the father of the child. She has actually called him personally about a week after their last court appearance here claiming that she may not be the father of the child and has offered to pay for a DNA test, which is why he did not pay his first $80.

On February 2, 2009, the GMT results were certified excluding any possibility that Mr. B. is the biological father of the child. A Suffolk County Family Lawyer said that promptly, on February 9, 2009 the mother filed a petition to modify the prior consent order of custody and visitation, asking that Mr. B. be removed from the custody order as the GMT results were made available to her and established that he is not the biological father of the child.

On February 27, 2009 the Support Magistrate accepted into evidence the GMT results, dated February 2, 2009 (filed with the court on February 15, 2009) and certified that there is a 0.00% probability that Mr. B. is the biological father of the child. Finally Mr. B. indicated that he would be consulting with an attorney, and the case was adjourned to April 6, 2009.

On March 31, 2009, a Suffolk County Custody Lawyer said the parties appeared before the court on custody/visitation case. Both were represented by counsel and an attorney for the child was appointed. The woman, on behalf of Mr. B., requested a motion date indicating her intention to file a motion to dismiss the mother’s petition. The Mother also requested that the Court take the paternity/child support case which was still pending before Support Magistrate. The Court agreed to do so and that case was transferred. The Court set April 30, 2009 for filing papers in support of the father’s motion to dismiss mother’s petition to remove Mr. B. from the custody/visitation order, and May 7, 2009 for argument.

Though requested, no written motion to dismiss was filed by counsel for Mr. B. However, the child’s attorney joined Mr. B.’s oral motion to dismiss. Memos were directed to be served by May 28, 2009 and were received.

These two parties never married, but met at a bar in Pennsylvania, where the mother grew up, in the fall of 2006, while the mother was living with another man—whom the mother says must, by process of elimination, be the biological father of the child. Mr. B. moved from Pennsylvania to Rochester and came back to move the mother to Rochester to live with him, when the mother called him as she had found herself to be pregnant and in need of help, and Mr. B. was willing to provide help and could have been the biological father. Interestingly, the mother says she told Mr. B. from the beginning that he might not be the father. Mr. B. admittedly knew when he met the mother that she was living with her boyfriend. Mr. B., however, denies that he had been told about the possibility of another man being the father until December 2008, when the child was already more than one year old and he had visitation pursuant to a consent order.

In this case the mother claims there is only one other possible father—her former Pennsylvania boyfriend, who is apparently disinterested at this time but clearly identified by name in the initial support litigation brought on her behalf by Monroe County Department of Human Services. She has had correspondence with this man and it appears highly likely that he could be located for support purposes. The mother testified that she is afraid of Mr. B., that he was physically abusive of the child at issue here, of her and of her daughter, and that although Mr. B. pays child support of $40 per week, she cannot financially survive in the Rochester area and needs to move back to Pennsylvania where she grew up and where many family members reside—as does her former boyfriend, whom she claims must be the biological father of the child. She also testified that the public assistance system in Pennsylvania will help her get a car, among other things.

Mr. B. steadfastly indicates he wishes to continue to have all the rights and responsibilities of fatherhood which were established by his acknowledgment of paternity signed a few days after the child’s birth, a custody/visitation agreement entered into, and a child support order of $80 every two weeks ($40 per week). Mr. B. offered into evidence much testimony that he has a wonderful father-son relationship with the child. This is supported by the testimony of his new wife whom he married in August 2009 after a five-month relationship. While denying any domestic violence against the mother, Mr. B. did admit to dumping a bowl of cereal on the mother’s head—a fact testified to by the mother. She has an order of protection against him granted by the court because of the cereal incident, among other allegations. The mother resided in various women’s shelters after leaving Mr. B. and testified to how difficult it was to leave him since she had no other means of support and she has no relatives or good friends locally.

This paternity vacature case is a case which never should have happened. It would be helpful if the legislature were to enact a law which would not allow any acknowledgment of paternity to be effective until actual biological paternity is established by the simple, routine use of a genetic marker test. Then a man who is willing to step up to the plate and be a father would only be allowed to do that via an acknowledgment of paternity if he is indeed the biological father. The Family Court has far too many cases of this nature and they could all be easily eliminated by having the genetic marker test done up front.

Child neglect and abuse is one thing, questioning or doubting paternity to a child is another. If you want to make sure that your children are given what is due for them, a New York City Child Support Attorney with the help of a New York Family Lawyer from Stephen Bilkis and Associates can help you. The NYC Guardianship Lawyer can also help find the best person to watch after children’s safety

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