[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 acknowledgement 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 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, 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 for an order of filiation/support, provided that the child is receiving public assistance.
Upon 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 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.
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 cancelled. This is entirely untrue, as acknowledgement 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 cancelled. This does not mean, however, that any informal payment agreements between the couple will be affected by said acknowledgement.
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 favourable 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 between 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 to 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 acknowledgement 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.
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 petition.