Articles Posted in Paternity

In New York there is a marital presumption of paternity. This means that if a child is born to a married couple, there is a presumption that the husband is the father of the child. The husband is the legal father of the child, even if he is not the biological father of the child. The presumed father can prevent another person from establishing paternity. However, under certain circumstances the court will find that it would be in the best interests of the child for a paternity to be administered so that they will know who their biological father is. In Joseph S. v. Crystal B., the court had to decide whether to allow a paternity test over the objections of the presumed father.

Background

In January 2017, Jocelyn, born in 2007, and her seven siblings were remanded to the care and custody of the Administration for Children’s Services (ACS) in a neglect and abuse proceeding.  They were placed in kinship foster care due to allegations of inadequate guardianship and lack of food, clothing and shelter. Their kinship foster parents were the adult children of the respondent.

While a DNA test will show almost definitively (90-99% accuracy) whether a man is the father of a child, in New York there are other ways to establish paternity.  One way is by signing an Acknowledgement of Paternity (AOP).  Both parents must sign the document, it must be witnessed, and it must be filed with the Office of Vital Records/Corrections Unit. Typically, parents file the document soon after the child is born, but it can be completed any time after the birth up until the child is 21 years old. Once an Acknowledgement of Paternity is filed, the father is considered the legal father of the child and has both the legal rights and obligations of a father. This means that the father is responsible for financially supporting the child and can be required to pay child support. It also means that the father is entitled to have access to the child and can petition for custody or visitation.

In M.H. v. S.S., the mother and father of the child were living together at the child the time was born.  They signed an Acknowledgement of Paternity the day after the child was born.  Eight months later, the relationship ended, and the mother moved. She then filed a petition for custody. She was eventually awarded sole legal and physical custody.  The father was granted visitation. Two years later, the father filed a petition to enforce visitation. In the petition he acknowledged that he was the father of the child. The mother then filed a petition against the father for child support. Interestingly, the very next month, expressing doubts as to whether he was the child’s father, the presumed father filed a petition to vacate the Acknowledgement of Paternity.

Once an Acknowledgement of Paternity has been filed, it is difficult to overturn.  The petitioner seeking to vacate an Acknowledgement of Paternity must allege that he signed it based on fraud, misrepresentation, or other misconduct.

In paternity cases in New York, there is a doctrine referred to as “equitable estoppel.”  Typically, the doctrine is applied in instances where a man has held himself out to be a child’s father and later seeks to deny paternity or to disprove paternity through DNA testing.  In such cases, it has been established that it is not in the best interests of the child to disturb the father-child relationship that the putative father has established or to disturb the financial support that the putative father has provided.  Thus, the father is stopped from denying paternity.

In the case of Seth P. v.  Margaret D., it is the father who petitioned the court to stop the mother from denying that he is the father of her twins.  The mother of the children was married to another man at the time that she had a sexual relationship with the petitioner.   For the first 8-9 years of the children’s lives, the mother allowed the petitioner visitation.  She treated him as if he was the father of the children and allowed him to develop a relationship with the children.  In 2008 the mother changed her behavior and stopped allowing the petitioner access to the children.  In other words, she stopped treated him as if he was the father of the children.  It is unclear as to why the mother’s behavior changed.  As a result of the mother denying the petitioner access to the children, the putative father petitioned the court to establish paternity.  Using the doctrine of equitable estoppel, the court adjudicated that the petitioner was the children’s legal father.

This case is notable because the court adjudicated the petitioner to be the father of the children even though the mother was married to another man at the time the children were born. Typically, if a mother is married when her child is born, her husband is deemed the father of the child, regardless of whether he was the biological father of the child.  However, because for several years the mother effectively acknowledged that the petitioner was the father of the children by allowing him to establish a parent-child relationship with each of the children, the presumption was essentially rebutted by the actions of the mother and the petitioner.

In this case the court was asked to set aside an acknowledgement of paternity, direct a paternity test, and discontinue child support payments.  The mother responded by filing a motion to dismiss the petition.  Not surprisingly, the court denied the petitioner’s request and granted the mother’s motion to dismiss.

Typically establishing paternity is only an issue if the child is born to unmarried parents. If the parents are married when the child is born, the husband of the mother is deemed the legal father of the child. This is the case even if there is reason to suspect that another man is the biological father.  If the parents are not married, there are a few ways to establish paternity.  One way is to get a DNA test which will indicate whether or not a man is the biological father of the child.  Another way is for both parents to sign a document called an “Acknowledgement of Paternity.”  The form requires that the parents agree on the paternity of the child.  There is not requirement that the parents take a DNA test to confirm paternity. Thus, if there is a question about paternity, it is a good idea to get a DNA test and to not simply sign an Acknowledgement of Paternity.

Once an Acknowledgement of Paternity is signed and filed, it is legally binding.  The father will have both the legal rights and obligations of a father, including the obligation of paying child support until the child is emancipated.  The father will also have the right to seek custody or visitation. This is the case regardless of whether or not the man who signs the form is actually the biological father.  Once paternity is established through the Acknowledge of Paternity form and child support established, it is very difficult to reverse. New York has an interest in ensuring that children are cared for.  It is in the best interest of a child to have two parents financially responsible for raising the child and to have two parents emotionally care for the child.  Thus, once a man comes forward and acknowledges that he is a child’s father and starts to pay child support, the court is reluctant to reverse it.

The court records establish that on May 6, 2003, the court adjudicated the Child V.(d.o.b. October 19, 2002, the “Child”) a neglected child under Article 10 of the Family Court Act and issued a final order of placement for one year, placing the Child in the custody of the Department of Social Services (“DSS”). On November 6, 2003, C. L. filed a paternity petition. The court granted the petition on April 7, 2004 and issued a written order of filiation on April 18, 2004. On October 15, 2005 C.L. filed a petition for visitation with the Child (the “Visitation Petition”). DSS filed a petition to terminate C.L.’s parental rights on November 21, 2005 (the “TPR Petition”). Ms. G, who had voluntarily placed the Child in the custody of DSS shortly after her birth, died in December of 2005. The foster parents, who wish to adopt the Child, moved to intervene in the adjudication of the Visitation Petition. The motion to intervene was denied by order of this court dated August 12, 2005.

The Department of Social Services moved this court for a hearing to determine whether C.L. is a person whose consent to the adoption of the Child is required under Domestic Relations Law §111 or whether C.L. is limited to receiving notice of the adoption proceedings pursuant to Social Services Law §384-c.

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