Archive for the ‘DNA testing’ Category

Minors and Rescission of Acknowledgment of Paternity

Sunday, February 2nd, 2014

A recent bill signed into law by Governor Cuomo, allows minors who acknowledged paternity of their children to have a brief period of time when they turn 18 to seek to rescind that acknowledgment . Family Court Act §516-a will permit young men who signed the acknowledgment of paternity up to 60 days, starting on their 18th birthday, to file a petition seeking to vacate.

Under the present law, if someone over the age of eighteen has signed an acknowledgment of paternity, the signatory may seek to rescind the acknowledgment by filing a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including, but not limited to, a proceeding to establish a support order) relating to the child in which the signatory is a party. The “date of an administrative or a judicial proceeding” means the date by which the respondent is required to answer the petition.

Sponsors of the legislation had said that seeking a rescission of paternity will not necessarily extinguish the paternal rights but could result in a judge ordering a DNA test to conclusively establish or disprove parenthood. Signing the acknowledgment of paternity is a serious matter since it carries responsibilities, such as paying child support for non-custodial children until they turn 21.

According to the legilative history of the statute, the change was prompted by the recognition that minors often sign acknowledgments without guidance from their parents or other adults, or sign them for children they know are not theirs without realizing the long-term ramifications. If acknowledgment is signed and, subsequently, there is evidence that the party who signed it is not the birth father, it may be too late to do anything about it.

A safer course of action is not to sign an acknowledgment. If the acknowledgment of paternity is not signed, then paternity will needs to be established, and Family Court is the proper venue for filing a paternity petition. 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. Generally, the DNA test is conclusive evidence of who the biological parent is. 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.

Acknowledgment of Paternity – Should It Be Signed By the Putative Father?

Monday, August 9th, 2010

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.

Asserting Equitable Estoppel As a Defense to a Paternity Proceeding

Sunday, June 6th, 2010

I have previously written about equitable estoppel.  In a typical equitable estoppel situation, the birth parent, typically the mother, asserts equitable estoppel to prevent genetic blood marker testing to determine whether the individual who believed himself to be the child’s father is in fact that child’s biological father.

In a recent case, Juanita A. v. Kenneth Mark N., 2010 N.Y. Slip. Op. 03758 (2010), the Court of Appeals held that a biological father may assert an equitable estoppel defense in paternity and child support proceedings, where there is another father-figure is present in the child’s life.

On June 25, 1994, the child was born. At the time, mother was unmarried, but living with Raymond S., who was listed as the child’s father on her birth certificate. Mother and Raymond had a previous child together and, after the birth of that child, had another child. When the child was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, mother called Kenneth at his home in Florida and had him speak with the child. The conversation lasted less than ten minutes, during which time A. asked questions concerning his physical characteristics. Kenneth’s attempt to speak with the child a second time was rebuffed by Raymond, who warned Kenneth not to speak to her again. Kenneth has had no further contact with the child.

In 2006, when the child was approximately twelve years old, mother filed the instant petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. The Support Magistrate advised Kenneth, among other things, that he had the right to admit or deny that he was the father of the child. However, the Magistrate did not advise Kenneth that he had the right to assignment of counsel, or inquire whether he wished to consult with counsel prior to proceeding. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth is indeed the child’s biological father.

At a hearing in January 2007, Kenneth, having now been assigned counsel, appeared once again via telephone, but protested that he had yet to speak with the lawyer assigned to him. Counsel admitted that he had not spoken to his client, and that the “file fell through the cracks for me.” Despite Kenneth’s protest, the Support Magistrate proceeded with the hearing. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a Judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and “generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support” (Aikens v. Nell, 63 AD3d 1662 (4th Dept. 2009)). The court also rejected Kenneth’s contention that he was denied effective assistance of counsel.

In Shondel J. v Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals set forth the law applicable to equitable estoppel in paternity and child support proceedings. It held that

purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position.

We concluded that the “paramount” concern in such cases “has been and continues to be the best interests of the child.

Id. at 326.

Equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child’s biological father. In such a case, the man has represented himself to be the child’s father and the child’s best interests are served by a declaration of fatherhood. The doctrine in this way protects “the status interests of a child in an already recognized and operative parent-child relationship” (In re Baby Boy C., 84 NY2d 91, 102n [1994]). Here, Kenneth sought to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond is A.’s father. He argued that it is not in A.’s best interest to have her current, child-father relationship with Raymond interrupted.

At the time the instant petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appears on her birth certificate and he is the biological father of her older and younger siblings. For most of A.’s life, she referred to Raymond as father. Thus, Kenneth appropriately raised an issue as to whether it is in A.’s best interest to have someone besides Raymond declared her father this late in her childhood. As a result, the Court concluded that it was proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.

The Court of Appeals disagreed with the Law Guardian’s position that a person who has already been determined to be a child’s biological father cannot raise an equitable estoppel argument. The Court stated that the doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child’s interests to disrupt the child’s close relationship with another father figure. The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Indeed, whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, the Court held that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child’s mother from asserting biological paternity — when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship.

As a result of the Court’s decision, the case was remanded for a hearing where Raymond will be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of the child’s best interests.

I think that this is an important case but its application is limited to very specific factual situations.

Basics of Paternity in Family Court

Monday, March 9th, 2009

Paternity is the term which describes a father’s legally enforceable rights and responsibilities to his child. Determination of paternity in New York is governed by the Article 5 of the Family Court Act. In accordance with the Family Court Act, paternity may be established in one of three ways; by presumption, by an acknowledgment, or by court order. If the parties are married at the time of the child’s birth, New York presumes that the husband is the father of any children of the marriage. While this presumption is rebuttable, the concept of equitable estoppel, previously discussed on this blog, may also be applicable and even if the presumption is rebutted, may preserve the parties’ initial positions with respect to paternity.

If the parties were not married at the time of birth of a child, legal paternity may only be established by signing an Acknowledgment of Paternity (either at the hospital or at the local Department of Social Services, pursuant to Family Court Act §516-A) or by the Family Court entering an Order of Filiation. Once an Acknowledgement of Paternity is signed, it may not be vacated after six months of signing, unless it brought about by fraud, duress or material mistake of fact. Under those circumstances, the time is extended to one year.

If the parties are not married, and paternity is challenged, the determination of paternity will be made by the Family Court. A paternity proceeding is commenced in Family Court by the filing of a verified petition from the party seeking to establish paternity. If the woman is married, and is claiming that her husband is not the father of her child, her husband must usually be named as a party to the proceeding. Once the parties are in court, they have the option to consent to an order of paternity. If the issue of paternity is resolved by consent, i.e., agreement of the parties, DNA testing does not take place. If paternity is consented to, it becomes extremely difficult to overturn a consent order of paternity in the future.

If there is no consent order of paternity, the court will generally order a DNA test. See Family Court Act §522. Once the results of the DNA test are know, the parties once again will generally have the option to consent to an order of paternity, or request a hearing. If the case goes to a hearing, it is the party seeking to establish paternity who has the burden to prove paternity by clear and convincing evidence. If, however, the probability of paternity in the DNA test is 95% or higher, New York law presumes the man is the father, and it is now his burden to overcome this presumption. At the end of the hearing, the court will consider all properly introduced evidence, and either issue an order of paternity or dismiss the paternity petition.

Parties are not required to accept the results of the tests, and the party may challenge DNA testing by attacking either the chain of custody of the samples, or the underlying mathematics of the statistical analysis. Such challenges are very difficult, and can be very expensive.

However, as noted above, under appropriate circumstances the doctrine of equitable estoppel may prevent the child and the parent from being tested and prevent the father from denying paternity. For example, if the party has alleged paternity in some other court proceeding or document, that party may be prevented from denying paternity. Similarly, if a man has held himself out to be the father of a child, he may be estopped from denying paternity in court.

The time to commence a paternity proceeding under the Article 5 of the Family Court Act is at any time during the pregnancy of the mother, or after the child is born, but not after twenty one years, unless paternity is somehow acknowledged by the father, or he paid support.

When a DNA test is ordered, the court may direct that either party pays, both parties pay or the state pays for the costs of these tests, all depending on the resources of all parties. If the father is determined to be the father, and he is the one who filed the petition, the court will likely direct that he pays the cost of the DNA test.

Having one’s name on the birth certificate, providing emotional and/or financial support, or holding oneself as the father makes one the “putative” father. That person will be named in the New York State Putative Father Registry and requires notice to such father in the event someone tries to adopt the child, the child is placed in foster care, or if someone is seeking child custody or guardianship. However, signing the Acknowledgement of Paternity, having an Order of Filiation or having been married to the mother at the time of birth makes one the “legal” father. And although the rights and responsibilities are similar, there is a legal difference between the two.

Paternity and Equitable Estoppel

Monday, November 24th, 2008

Equitable estoppel typically arises as a defense in situations where a person, typically a nonbiological father, seeks to avoid child support obligations or the biological father belatedly seeks recognition of his parental rights.

DNA testing is a way to guarantee that non-custodial parents provide financial support for their children and make it possible to accurately determine a child’s paternity in a quick and inexpensive manner. The widespread availability of reliable genetic testing has reduced the need for extensive fact finding hearings and protracted litigation in the court system and can essentially ensure that the presumptive father is really the child’s biological father. However, in New York, not every putative father entitled to a DNA test.

Consider a scenario where a presumptive father files a paternity petition in a New York family court, together with a petition for custody of a child he believed to be his own. The child’s mother concedes paternity and acknowledges that her son refers to the putative father as his father and that the putative father has had some involvement with the child. Lets assume farther that during the paternity hearing, however, the putative father requests that the Court order a DNA test to confirm that he is indeed the child’s biological father. Must the Court issue an order subjecting the child to DNA testing?

In New York, the answer is no. Under what is known as the doctrine of equitable estoppel, the Court may deny an application for a DNA test in a paternity proceeding on the principle of fairness and in the best interests of the child. Equitable estoppel precludes a presumptive father from speaking out against his own acts, commitments or representations if they are reasonably relied upon by the child.

If a substantial parent-child relationship has developed between the putative father and the child and no biological father has come forward to contribute to the costs of the child’s upbringing, New York courts may find that it is not in the child’s best interests to admit DNA evidence that disproves the presumptive father’s paternity. The doctrine of equitable estoppel has often been applied to protect the child from an untimely assertion or denial of paternity, which, if permitted, would damage an existing parent/child relationship.

In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals directly addressed the application of equitable estoppel in paternity and support proceedings. In that case, the court found that the respondent, who never married the mother and was not the biological father of the woman’s child, was equitably estopped from denying paternity. The child was believed to be the product of a brief liaison between the respondent and the mother. The respondent initially acknowledged paternity and provided some financial support. He had intermittent visitation with the child, although he was often not even in the same country as the mother and child. Four years after the child’s birth, it was determined that he was not the biological father. The court found that the respondent was equitably estopped from raising the issue of paternity, both by statute (Family Court Act § 418 [a]; § 532 [a]) and at common law. The court concluded that both the statute and case law required that the best interests of the child controlled whether a person was required to continue support payments, even if it was belatedly determined that he was not the biological parent. “The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. . . . [T]he issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.”

The doctrine of equitable estoppel evolved as a balancing test between the best interests of the child and the rights of the parent. Where there has been a bond formed between the parent and child, the interest of the child in preserving that relationship and the obligations of the parent toward that child, outweigh the putative father’s interest in establishing whether he is really the child’s biological father.