Paternity

PATERNITY QUESTIONS: HOW TO NAVIGATE LEGAL FATHERHOOD

Undisputed Legal 

[1.1] EXPLAINING A PATERNITY CASE

It’s easy enough to identify a child’s birth mother, but what about paternity? A child born to parents not married to each other is considered not to have a legal father unless the biological father signs an ‘Acknowledgement of Paternity.’ This is usually done at the hospital at the time of the child’s birth. 

So, what exactly happens? 

Voluntary Acknowledgment of Paternity (AOP) is a legal process through which paternity, or legal fatherhood, can be established. The father declares himself to be the child’s father, entering an ‘Order of Filiation’ which essentially is a court order declaring legal parenthood. A petition can be filed in Family Court seeking the same. 

Paternity establishment ultimately is just the process of determining the legal father of a child. In New York, unmarried parents can establish paternity by [A.] signing a voluntary Acknowledgment of Paternity form; or [B.]by petitioning a court to determine paternity. The Acknowledgement of Paternity form is available from hospitals, local district child support offices, and local birth registrars.

[2.1] WHAT IS AN ORDER OF FILIATION AND WHY IS IT MADE?

Basically, without the bond of marriage further strengthening the relationship between the couple, the would-be father has no obligation to pay support for the child. Additionally, he has no legal right to custody or visitation rights with the child either. 

This dynamic is changed once he is named the legal father of the child. For this, he requires to have an order of filiation or an acknowledgment of paternity.

If a man was not married to the mother of the child, he has no obligation to pay support for the child and has no legal right to custody or visitation with the child, unless he is legally named the father of the child, through an order of filiation or an acknowledgment of paternity.

So, when should a petition not be filed?

When there is doubt about the identity of the biological father, the Acknowledgement of Paternity form should not be signed. It must be kept in mind that this form is absolutely voluntary, and instead of signing the form, the parents can petition the court to determine paternity. 

However, if there’s any question at all about paternity, the first place to turn to is genetic testing. This is recommended whenever there’s any doubt about the child’s father. It is thus the duty of the hospital staff to remind unmarried parents that genetic testing is available through Family Court in case of any doubts that need resolution. 

Ultimately, if the petition is filed, the court will inevitably order the mother, child, and would-be father to submit to the abovementioned genetic tests to determine legal fatherhood. If the alleged father is proven to be the biological father, the order of filiation may be issued with a declaration of valid fatherhood so that child support may thus be asked. 

[3.1] HOW TO FILE A PATERNITY PETITION

To go about filing a petition for paternity, the petition must be filed by the child’s mother, would-be father, the child themselves, or their allotted guardian. While the sound of the child filing an Acknowledgment of Paternity may seem incongruous, it must be noted that paternity can also be established at a later date, either by Family Court or by acknowledgment. Additionally, in New York, a proceeding to establish paternity can be brought during the mother’s pregnancy or up until the child reaches the age of 21. In some circumstances, a paternity action can be brought after the child’s twenty-first birthday, as long as paternity has been acknowledged by the father

The Department of Social Services is also qualified to seek an order of filiation/support, provided that the child is receiving public assistance. 

Upon the filing of the petition, it must be served upon the respondent with the summons as well. The petitioner for the case is required to produce a copy of the child’s birth certificate in court, where the parties in the case will appear before a Support Magistrate. 

The case can go two ways. Firstly, if the parties agree on the biological fatherhood of the man presented before the court, the hearing examiner may immediately enter an order of filiation without any further ado. However, if the alleged father denies his involvement, the Support Magistrate will order DNA testing of the parties involved, and adjourn the case to another date whereupon the parties will complete their appointment date for the laboratory tests. Upon return of the tests, the court will determine the probability of paternity. 

If parties can still not agree on paternity, the matter will be deferred for a later scheduled hearing where an opportunity to testify will be provided to both parties. The DNA results may be offered in evidence, but this does not exclude witness testimonies or other forms of proof. If the petitioner presents sufficient proof, the court will enter an order of filiation; if not, the petition will be dismissed.

After paternity has been decided, if the custodial parent seeks an order of child support, or is receiving public assistance for the child, the Magistrate will conduct a support hearing.

It must be kept in mind that information entered on the Acknowledgment of Paternity (AOP) form is confidential and cannot be released unless ordered by a judge. Only the parents and the child named on the form, the child’s legal guardian or representative, or government officials acting in the capacity of their official duties may obtain copies of the form.

[4.1] SOME CONCERNS THAT MIGHT ARISE

It’s often likely that new mothers defer seeking an Acknowledgement of Paternity under the misconception that their temporary assistance benefits will be reduced or canceled. This is entirely untrue, as an acknowledgment of paternity coupled with an application for child support is quite possibly the only way to receive assistance. Without the assistance of Child Support personnel to establish paternity to pursue child support, the benefits are greatly reduced and often canceled. This does not mean, however, that any informal payment agreements between the couple will be affected by said acknowledgment.

Additionally, filing for paternity does not automatically mean that the child may be taken away from the individual. While acknowledging paternity does provide an avenue for the noncustodial parent to file for a custody petition, it does not guarantee a favorable decree on its own, with the court alone having decision-making power on custody issues.

While it is often the decision of the parents to have no contact with each other, it must be noted here that acknowledging paternity does have benefits for the child, including but not limited to information about family medical history, financial support from both parents, and medical or life insurance from either parent, if available. However, acknowledging paternity is entirely voluntary and cannot be forced onto either parent. 

[5.1] SPECIAL CIRCUMSTANCES

If the mother was married at the time the child was conceived or born, her husband is considered to be the legal father of the child, even though he might not be the biological father, unless a court decides that he is not the father. A copy of the paternity petition must be served upon the husband to notify him about the court case. After he is served, a judge may make a ruling concerning his relationship with the child. If the judge decides that the husband is not the father, the paternity case against the other alleged father may continue. 

Under New York law, there is a presumption that if two individuals are married at the time of their child’s birth, the husband is the legal father of the child.

Additionally, parents who are minors can acknowledge paternity for their child, as well as unmarried surrogate mothers with the husband of a married couple. However, the surrogate mother must not be married at any time during the pregnancy or birth, after which adoption proceedings may follow. 

The importance of the voluntary nature of an acknowledgment of paternity is crucial to remember, especially considering the parent’s circumstances at the time. Each parent should be approached at their own comfort to deal with the proceedings. 

For information on serving paternity papers visit https://undisputedlegal.com/paternity-process-service/ or call (800) 774-6922 Representatives are available Monday- Friday 8am-8pm EST.

Sources

1.New York Consolidated Laws, Family Court Act – FCT § 516-a. Acknowledgment of paternity

2.New York Consolidated Laws, Family Court Act – FCT § 542. Order of filiation

3.Family Court Act Section 513 (unmarried parents are responsible for their child’s support)

4.New York Consolidated Laws, Family Court Act – FCT § 523. Petition

5. New York Consolidated Laws, Public Health Law – PBH § 4135. Birth certificate; child born out of wedlock

6.§ 541. Order dismissing the petition.

DNA Test For Paternity, How Does It Work

The parties are given an appointment for DNA tests at a laboratory. The petitioner or respondent will have to pay for the testing unless the court finds that the party cannot afford it. If so, DSS will pay for the test. The laboratory will send the results directly to the court. 

When the parties return to court, the court will explain the test results. DNA test results are expressed in percentages. For example, the DNA test might show that the man is 98% likely to be the biological father. If the parties agree on paternity after learning about the DNA results, the court may enter an order of filiation. If the parties still do not agree on paternity, the matter is adjourned for a hearing. At the hearing, both parties may testify and present witnesses, and the blood or DNA test results may be offered in evidence. The petitioner usually has the burden of proving paternity by clear and convincing evidence. If the DNA test results are 95% likelihood of paternity or higher, the burden shifts to the respondent to prove he is not the child’s father. If the petitioner presents sufficient proof, the court will enter an order of filiation. If not, the petition will be dismissed. 

After paternity has been decided, the support magistrate will conduct a support hearing if the custodial parent seeks an order of child support or is receiving public assistance for the child. 

For information on serving paternity papers, contact a Paternity process service call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Filing For Paternity And What To Expect

What Is a Paternity Case?

When a child is born to parents who are not married to each other, the biological father is not considered the child’s legal parent unless the father has signed an “Acknowledgment of Paternity” (usually done at the hospital at the time of the child’s birth) declaring himself to be the child’s father, or an “order of filiation” has been entered, which is a court order that declares that person to be the legal father. A petition may be filed in Family Court seeking an order of filiation.

Why Is it Is Necessary to Have an Order of Filiation Made?

If a man was not married to the child’s mother, he has no obligation to pay support for the child. He has no legal right to custody or visitation with the child unless he is legally named the child’s father through an order of filiation or an acknowledgment of paternity.

What Happens at the Hearing?

Initially, the parties appear before a Support Magistrate. If the mother was not married when the child was conceived or born, and the respondent admits that he is the father, the hearing examiner enters an order of filiation. If the respondent denies that he is the father, the Support Magistrate will order blood or DNA tests of both parties and the child and adjourn the case to another date. The parties are given an appointment date for the laboratory tests.

When the parties return to court, the test results are explained by the court. The blood or DNA tests may exclude the man as the biological father or show how probable it is that he is the father. If the respondent admits paternity, an order of filiation is entered. If the parties cannot agree on paternity, the matter is then scheduled for a hearing. Both parties may testify and present witnesses, and the blood or DNA test results may be offered in evidence. If the petitioner presents sufficient proof, the court will enter an order of filiation; if not, the petition will be dismissed.

After paternity has been decided, if the custodial parent seeks an order of child support or is receiving public assistance for the child, the Magistrate will conduct a support hearing.

For information on serving legal papers, contact a paternity process service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.