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.
