During the last few months, I have been involved with a case that involved an acknowledgment of paternity that was signed by someone who was not the child’s biological father. While most of the time the acknowledgment is signed without a great deal of consideration, I think that putative fathers should be careful and only sign the acknowledgment if they understand the full set of legal issues associated with this document.
Once the acknowledgment is signed, there is a limited period of time during which the acknowledgment can be vacated. Usually this comes up in a situation where either the father or the mother discovers that the father of her child is not the biological father and wants to change his name to either hers, or that of the biological father. Unfortunately, it is not that simple.
Most of the time, a child, who has the father’s last name, has acquired it when the father signed the Acknowledgement of Paternity soon after the child was born, particularly where the parties were not married. In this situation, changing the child’s last name to either the mother’s name or the actual father’s name may require several steps in court, because the “notice” (the one who signed the acknowledgment) father can object to any proposed change. In a situation where paternity needs to be established (or re-established), Family Court is the proper venue for filing a petition. The mother can file a petition requesting that the Acknowledgement of Paternity be vacated based on the fact that the father is not the actual father, or; either she or the biological father, can file a Paternity petition. In the first situation, assuming that the filing is timely, the court granting the mother’s request for vacating the Acknowledgement of Paternity does not automatically establish the real father of the child as the father for any purpose. Once the Acknowledgment is vacated, legally, there is no father that the court will acknowledge until there is someone that can be identified and brought to court. Thus, a Paternity petition must be filed by either party to obtain an Order of Filiation, which establishes the father as the “legal” father, from the Court. This is the legal document that is required by the Department of Health and Mental Hygiene (”DHMH”) to issue a new birth certificate with the new name on it, that of the father’s.
In second situation, if the either parent files a petition for Paternity, then the father can either consent to paternity or, if he does not, the court can order Genetic Marker (DNA) Test to confirm that he is actually the biological father. However, before the DNA test is ordered by the court, it will have to address any equitable estoppel issues that may arise. Assuming that equitable estoppel issues have been resolved, and the DNA test takes place, then the Court will issue an Order of Filiation, which is provided to the DHMH for the issuance of a new birth certificate.
Equitable estoppel in those situations may be raised both offensively and defensively by either the man initially believed to be the biological father or the man believed to be the true biological father. Not all fathers cooperate since an Order of Filiation typically results in an order for child support and, possibly, a liability for birth expenses. The courts are reluctant to vacate an Acknowledgement of Paternity where there is currently a child support order against the man, initially believed to be the biological father, unless the court can identify the actual father so that the child has someone to support him.
There are several good reasons for someone to establish paternity. For example, although a father whose name is on the child’s birth certificate is considered the “notice” father, his rights with regards to adoption, termination of parental rights and abuse/neglect matters in Family Court are limited, until paternity is established. A father whose paternity has been established is the “legal” father, on the other hand, has no limits with regards to his rights in any case in any court.
In almost all circumstances, it is wise to ascertain who the actual father is as soon as possible after the child’s birth, so as to limit any other legal issues that may arise, such as equitable estoppel.