Momma's Baby, Daddy's Maybe: Part One

Posted By Law Office of Adelola Sheralynn Dow, PLLC || 8-Sep-2012

When I was a little girl, my mother had a saying that she would use: "Momma's baby; daddy's, maybe!" While I was too young to understand the true meaning of the phrase back then, the practice of matrimonial and family law brings the true meaning of that phrase to the forefront of my mind each day.

Simply put, unless there are extenuating circumstances – which we do not have time to delve into in this entry – the biological mother of a child will almost always be identifiable simply because she is the one who carried the infant to term and labored to bring the infant into the world. However, the identity of the father is not as easily determined; hence the reason why the paternity of a child is sometimes questioned.

In New York, Paternity can be established in several different ways:

  1. The mother and the alleged father sign an Acknowledgment of Paternity at or after the child's birth;
  2. A DNA test confirming paternity is administered and an Order of Filiation (order establishing paternity) is issued;
  3. The issuance of an Order of Filiation after an admission of paternity;
  4. Presumption of legitimacy of an infant born to a married woman; and
  5. Paternity –by- Estoppel.

Execution of an Acknowledgment of Paternity

Unmarried parents may voluntarily establish the paternity of the child by both parent's executing an Acknowledgment of Paternity. This form is typically available in the hospital after the child's birth and can only be executed by unmarried parents. The Acknowledgment of Paternity form can be signed at any time before the child turns 21 years of age.

One must be careful to make sure that he or she truly desires to enter into this document as doing so immediately vests the alleged father with the rights to seek custody, visitation, etc., and it also makes the "non-custodial" parent responsible for the financial support of the child. If one is unsure about an already executed Acknowledgement, he or she only has sixty (60) days to seek to vacate the acknowledgment before it becomes essentially "uncontestable," except in a few rare factual situations.

DNA Test and Order of Filiation

In the event a party fails to engage in, or does not qualify for, the Acknowledgment of Paternity process described above, a person "authorized" to file a paternity action, including, the mother or alleged father of the child, or the child's guardian and petition for a DNA test. A Court will only enter an Order providing for a DNA test if it believes that same is warranted by the "best interests of the child," as determined by the Court. If a DNA test is ordered and the results are over 95% positive, then an Order of Filiation will be entered establishing the paternity of the child.

Order of Filiation After Admission of Paternity

Where a paternity action is filed and the parties testify that the alleged father is in fact the father of the child, the Court will enter an Order of Filiation establishing the father's paternity without ordering a DNA test. In the case of the establishment of the paternity of an infant born to a married woman, the Husband must admit that he did not have sexual "access" to the mother of the child and the Court must have uncontroverted testimony establishing the paternity of the other man. Only then will the Court enter an Order of Filiation establishing the paternity of the other man.

These concepts are highly technical, so don't try to attempt to navigate the process of paternity establishment without the aid of a knowledgeable attorney. Before you file anything on your own, contact The Law Offices of Adelola Sheralynn Dow, and I will be happy to consult with you on your Family Law or Divorce matter. Look for Part Two in October 2012!

© Copyright 2012, by A. Sheralynn Dow, Esq., the author reserves all rights to the marterial set forth herein.

Categories: Family Court, Paternity