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