Paternity in New York (for Advocates)
When a child is born to a married woman, the law assumes that her husband is the child's father. However, when a couple is not married, the biological father is not considered the legal father until paternity is legally established. Establishing paternity gives certain legal rights to the child. It also gives certain legal rights and responsibilities to the father. There are two ways to establish legal paternity: one requires the filing of a petition and the entry of a court order (usually done in Family Court), the other requires a written acknowledgment signed by each of the parents and recorded with the child's birth certificate. Until 1997, the father of an out of wedlock child could agree to have his name listed on the child's birth certificate without signing this formal acknowledgment; therefore you can not assume that paternity has been legally established based solely on the appearance of a child's birth certificate. However, the law provides that an unwed father's name cannot be listed on the birth certificate without his consent (PHL§4135, Form DOH-2739).
If the parents of a child marry after the child is born, Domestic Relations Law §24 provides that the child is "legitimized". The Department of Health will amend the child's birth certificate with the filing of a Public Health Law §4138 affidavit from the parents, which can also be used to change the child's last name.
Hospital Based Paternity Acknowledgments
In March 1995, New York hospitals, and most other states, started to offer parents of out of wedlock children the opportunity to legally establish paternity of their child with papers signed and recorded at the time of the child's birth. This option is not available to married women, who must establish legal paternity in court, because the husband is presumed to be the child's father and no other person can claim the child as his without the husband being given legal notice. This also may not be the best way for parents who are under age 18 to establish paternity in this way, because minors are legally incapable of entering into binding contracts, and are required to have legal representation even when establishing paternity in court. An acknowledgment signed by a minor without legal representation would be more vulnerable to a future challenge. Although the acknowledgment is often done before the child leaves the hospital, this acknowledgment can also be used to legally establish paternity long after the child's birth. Ask your local Social Services Department, if you need the necessary forms.
The acknowledgment of paternity requires the mother to state that she is unmarried and that the named "father" is the only possible father of the child. It lists the name to be recorded for the child, which does not have to be the father's surname. Both parents should read a page long notice of legal rights and consequences, before signing the acknowledgment. This acknowledgment, once it is recorded, has the same force and effect as a court order of filiation or paternity. Within 60 days of signing, you could still change your mind and file a petition with Family Court to vacate the acknowledgment. Either parent also has the right to make a motion to the Family Court to vacate the acknowledgment within one year of when it was signed; however, the court would not grant this relief after 60 days, unless the consent was obtained through fraud, false and mistaken statement, or coercion. If you are the child's mother, consider that you are giving equal custodial rights (absent a court order awarding custody) to the father by signing the acknowledgment. If this gives you reason for concern, you may wish to delay signing the acknowledgment until you are able to also obtain a custody order.
The paternity acknowledgment which legally establishes paternity requires the signatures of both parents, and also requires the mother to be unmarried. A father who wishes to protect his rights and who is unable to establish paternity in this way may register with the state's "Putative Father Registry". This will guarantee his right to notice if anyone else seeks to establish paternity of the child, or if an adoption of the child is sought. However, it will not legally establish his paternity or give him any sort of custodial or visitation right. To acquire these legal rights, he would need to file a paternity petition with Family Court.
If you discover a married client has obtained a birth certificate naming an unmarried father, it is highly advisable to file a paternity action to have paternity established in the proper way, as the fraudulent acknowledgment should not be relied on.
Rights and Obligations Relating to Legal Paternity
After the entry of an acknowledgment of paternity or an order of filiation or paternity, the father acquires the following rights and duties: All the parental rights and duties of the father of a marital child, including the obligation to support to age 21 or sooner emancipation; the right to refuse a requested adoption of the child or block foster care placement; the right to share in custody of the child (absent a contrary court order), and the right to request court ordered visitation. His consent will usually be required for the child to leave the country. Absent a court order for sole custody, each parent now has the authority to consent to medical care and participate in decisions regarding education and other critical areas affecting the child's welfare.
The child who is the subject of the acknowledgment or order now has the following rights: the right to child support; the right to inherit from the father under intestacy laws, or to share in any claim for wrongful death of the parent; the right to Social Security dependant's benefits if the father dies or becomes disabled; qualification as a dependant under family health insurance policies available to the father; and the additional protection of another parent with the ability to assert custodial rights in the event that the mother should die or become unable to care for the child.
Paternity Proceedings in Court
The mother of the child, alleged father, or other person representing the interests of the child, has the right to file a petition with the Family Court to establish paternity of a child. The Surrogates's Court which deals with inheritances, or the Supreme Court, which handles divorces, can also make paternity orders, but this is more unusual. The petition could be filed before the child is actually born, and at any later time before the child reaches age 21. The child does not need to have been born in NY, but if born or conceived elsewhere, NY must have some connection to the parent against whom the petition is filed. The petition will allege that the child was born out of wedlock, the marital status of the mother, the alleged father, and the period of time during which the parents had sexual relations and the child was allegedly conceived. If the father has admitted paternity either verbally or in writing, this may also be included.
If the mother was married when the child was born or conceived, then her spouse should be given notice of the action. The spouse may decide to provide an "affidavit of no access", confirming that he had no sexual relations with the mother during the time period when the child could possibly have been conceived, which will dispense with the need for his further involvement in the proceeding. Even if the spouse could not be the biological father, he may have the right to block a petition if he wishes to acknowledge and raise the child as his own. New York public policy limits the right of third parties to challenge the paternity of a child born in wedlock, over the objection of the husband and wife - even the "right" to a genetic test could be denied, in the best interests of the child. The principle of "equitable estoppel" could also prevent the husband or wife from challenging a child's paternity several years after the child's birth. For example, if the wife allowed her husband to be named as the child's father and to establish himself in this role, she may be unable to try and remove him as the child's father years later. Similarly, the husband cannot knowingly take on the father's role, having doubts about his parentage, and assume that a court would let him challenge paternity years later if the marriage dissolves. The court may deem biological paternity to be irrelevant when weighed against the damage to the child's rights, based on representations which have been relied upon over a long period. The court will generally appoint an attorney to represent the child's interests when the issue of equitable estoppel is raised.
There is a legal presumption that a full-term pregnancy lasts 266 to 299 days from the beginning of the last menstrual period, and that actual conception occurs 240 to 300 days before birth. The most likely time of conception is 38 weeks (266 days) before a full term birth. The mother (unless she's the respondent) should expect that she may be required to give information about anyone else she dated or had sexual relations with during or near this period. The respondent (usually the father) in a paternity proceeding has the right to choose not to give any testimony in the case, and has the right to a court appointed attorney if he or she cannot afford one. The person filing the petition does not have the right to a free attorney, unless he or she is under age 18. Either party has the right to ask the court to order genetic testing, which can be paid for by the county if neither parent can afford it (but if there is a finding of paternity, the respondent will owe reimbursement for the cost, usually about $300.00). Genetic testing cannot absolutely prove that someone is the father of a child, but it can exclude a high percentage of the population from the possibility of paternity. A genetic test which shows a 95% or higher rate of exclusion (or probability), creates a presumption of paternity, which will require other clear and convincing evidence to be overcome. Testimony that the mother had sexual relations with other possible fathers is not admissible unless there is other corroboration for the testimony. If the respondent continues to contest the case after genetic tests and preliminary review of the facts, then trial is held before a judge, not a jury, and persons not directly involved are generally excluded from the room.
If the court makes a finding of paternity, the court is then authorized to make awards for child support, custody, and visitation, if requested by either parent. The case would probably be adjourned for further hearing on these issues. There is no right to obtain information about the father's finances before he is determined to be the child's father, which generally means there must be a two-part hearing. The father can be liable for the reasonable expenses of the mother's pregnancy, "confinement", and recovery from childbirth, if evidence is presented to document these expenses. Effective October 2009 FCA §413 and 514 were amended to provide that the "medical support" should not exceed 5% of the non-custodial parent's income in the year in which the expense was incurred.
Public Assistance and Paternity Establishment Cooperation
If your child is receiving public assistance, then Social Services will try to get support from the father, and you will be required to cooperate or assist, unless you have "good cause" not to. "Good cause" not to cooperate exists if doing so is likely to cause physical or emotional harm to the child or mother, if the conception occurred by incest or rape, or if an adoption is pending or is being considered through an agency. If you are denied your request for a good cause exception, you have the right to request a fair hearing. It would be helpful for you to produce evidence such as any prior order of protection, police domestic incident reports, threatening letters, or a mental health counselor's recommendation.
While receiving public assistance, you have the right to receive the first $100 in support actually collected each month. If you have more than one child receiving support, this "pass through" increases to $200 per month (see 09-ADM-08). If the father consistently pays $40.00 a week or more in child support for one child, then you may be able to remove your child from cash public assistance (even if still receiving Medicaid or Food Stamps). With current lifetime limits on the time you can receive public assistance, this offers obvious advantages. After leaving public assistance, you have a de novo right to file a petition for child support, if your order was initially established on your behalf by the Social Services Department. This means you are not required to show any changes, to have the amount of support reviewed.
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This article supplies general information designed to educate the public about this subject. Laws affecting this subject may have changed since this flier was written. For specific legal advice about a problem you are having, get the advice of a lawyer.
Receiving this information does not make you a client of our office.