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The issue of paternity arises when a man wants to prove that he is the father of a child and therefore wants his parenting rights to be enforced or when the mother of a child wants child support from a man she claims to be the father of her child. Let us review some of the frequently asked questions regarding paternity and how a lawyer can help in these cases.
What is Paternity?
Paternity is the legal status of being a child’s father. A person with this legal status has father responsibilities and rights to the child in question. This includes the right to custody and visitation.
According to New York law, if two people are married during the time their child is born, the husband is considered the child’s legal father. However, if two people are not married during the time their child is born, the father has no legal duties and rights to the child. In such cases, paternity needs to be established for the parents and child to secure specific rights.
How is Paternity Established?
The two ways unmarried couples can establish paternity in New York is through an acknowledgment of paternity and an order of filiation.
Acknowledgment of Paternity
If both parents agree on the identity of a child’s father, they can sign an acknowledgment of paternity form. This agreement states that the person who has appended his signature on the form is the legal father of the child. A valid acknowledgment of paternity must be witnessed by two people who are not related to the parents.
Order of Filiation
An order of filiation, also known as a paternity petition, is a request for the court to hold a paternity hearing. The court will order for a genetic testing on the alleged father, the mother, and the child. If the DNA tests confirm the biological father of the child, he will be issued with an “order of filiation”. This is a court order that declares the legal father of a child. After this order has been given, the legal father’s name is appended on the child’s birth certificate.
Filing a Paternity Petition
A paternity petition can be filed by the individual alleging to be the child’s father, by the child’s mother, by the child’s guardian, by the Department of Social Services, and also by the child. In New York, a paternity petition is valid as long as it is brought between the time a woman is pregnant and before the child reaches 21 years.
How Can a Lawyer Help in Paternity Cases?
While parents can represent themselves when filing a paternity petition, involving a lawyer is necessary in complex cases. In cases where the mother of a child is married to another person other than the child’s father, or where the child’s father signed an acknowledgment of paternity but revoked it later, a lawyer can come in handy.
There are cases where an unmarried couple separates and the mother of the child wants to claim child support, in such situations a lawyer can be helpful in filing a paternity petition and reinstating the mother’s claim of child support. Similarly, when a couple is separated and the mother leaves with the child, the father, with the help of a lawyer, can reinstate his legal rights as a father by filing a paternity petition.
When a baby is born in paternity can be established in one of three ways. If the parents are married. The husband is presumed to be the father of the child. A man who is not married to the mother has two ways to establish paternity. The first is to sign an “Acknowledgement of Paternity.”
This is a legal document allows the man to declare himself the baby’s father. This is done at the hospital shortly after the baby is born. However, this is only one step. The acknowledgement is sent to the courts. The New York family court creates an “order of filiation.” This order establishes the paternity.
The third way paternity is established is via a paternity petition. A paternity petition is an option if the alleged father does not sign an “Acknowledgement of Paternity.” The petition starts the process of establishing paternity via a court hearing.
All paternity laws are outlined in New York’s Family Court Act 515-a.
Who can File a Paternity Petition in New York?
Only certain people or agencies can file a paternity petition to establish who fathered a child. This list includes:
• Alleged father
• An individual in a parental relationship with the child
• The child’s next of kin
• Child’s guardian
• Representative from the New York welfare agency
• Representative from a charitable organization
Does Establishing Paternity involve a DNA Test?
Yes. The court may choose to have the child and alleged father undergo DNA testing. The court could order blood testing instead of a DNA test.
A DNA test is not automatically requested before the hearing. In the first hearing, each side presents their case. Presenting evidence also includes showing evidence to show whether the alleged father is or is not the child’s biological father. At the end of the hearing, he may admit to fathering the child. If not, the magistrate over the case may order a DNA or blood test. The results will be revealed at another hearing.
If the test results reveal he is the father paternity is established. Other issues related to the child such as child support will be established at a separate court hearing. If he is not proven to be the father, the paternity petition ends. He does not have to pay child support.
An Order of Filiation is Necessary to Establish Paternity
If the man was not married to the mother at the time the child was born, he is not obligated to pay child support. He has no legal right to make a child custody agreement or visit with the child. The only way he is obligated to pay child support or can seek child custody is if an Order of Filiation is made by the court.
If he is proven to be the father of the child during a paternity petition, the court will make an order of filiation.
What if the Husband is not the Father or the Father Regrets Signing the Acknowledgement of Paternity?
In both of those cases, the father has the legal to vacate the Acknowledgement of Paternity. A man has 60 days after the child’s birth to rescind the acknowledgement. If he finds out later he is not the father, he is still allowed to rescind the Acknowledgement of Paternity. However, he must show proof that he signed in error such as fraud, coercion or duress.
If you would like to know more about establishing paternity or need legal representation, contact use. We will discuss your case and tell you how we will proceed in getting the answers you need.