Minors and Rescission of Acknowledgment of Paternity

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?

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.

Basics of Paternity in Family Court

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.