The establishment of paternity is important to a child.  Not only does a child benefit emotionally from knowing the identity of his or her father, there are also legal and economic benefits.  The establishment of paternity gives a child the legal right to child support from the father.  In addition, the child may have inheritance rights.  In New York, although a parent is not required to provide for a child in a will, the child does have a right to a portion of the estate of a parent who dies without a will.  Further, the establishment of paternity also gives the child the right to health benefits when the father has a policy that provides such insurance to children, Social Security benefits if the father is disabled or dies, and the right to share in a wrongful death action if one is brought.

The establishment of paternity also provides the father with legal rights concerning the child.  Once paternity is established, the father has rights of visitation and can seek legal custody of the child.  A decision concerning custody will always be made in accordance with the best interests of the child. The legal father can object to the mother moving out of New York with the child.  Also, once paternity is legally established, no other man can be found to be the father.  Further, the child cannot be given up for adoption or foster care without either the consent of the father or a legal action against the father.

In New York, there are three ways in which paternity of a child can be established:

1.      If the child is born while the couple is married, the legal presumption is that the husband is the father.  The burden is on the husband to prove that he is not the father. 

2.      The father can sign an acknowledgment of paternity.  The proper form must be signed and notarized.  This form is provided to unmarried women at the time they give birth.  If the man changes his mind and wishes to withdraw his consent to paternity, he has 60 days to do so by filing an action in Family Court.  Either party may file an action in Family Court within a year to change paternity, but it is very unlikely that the Family Court will allow the change.

3.      Paternity can be established in a Family Court action.  Once the judge in a Family Court action is convinced that the man is the father of the child, the judge will issue an order of filiation.  An order of filiation simply means that the man is the father of the child. 

An action for paternity can be brought by any of the following parties: the child’s mother; a man who has reason to believe that he is the father; the child, the child's guardian; or the Department of Social Services if the mother is receiving public assistance.

A paternity action can be brought during pregnancy and until the child is 21 years old.  Under certain circumstances, a paternity action can be brought even after the child is 21. For example, a paternity action may be brought if the man paid child support or in some other way acknowledged that he was the father.  The establishment of paternity after the child reaches 21 may be important in the event the father dies without a will and has a significant estate.  Even after the death of the father, paternity can be established through DNA testing of his relatives.

In a Family Court action, the parties can agree that the man is the father of the child.  In such a case, the judge will issue the order of filiation.  If the parties do not agree that the man is the father of the child, the judge may order that DNA testing be done.  If the results show that there is at least a 95% probability that the man is the father of the child, the judge, unless convinced otherwise, will issue an order of filiation. 

Once paternity is established through any of the above mentioned methods, it is extremely difficult to change it.  It is public policy that every child have a legal father who is responsible for that child.  Judges are extremely reluctant to find that a man who is legally the father of a child is not the actual father.  This said, if there is any doubt as to whether the man is the father of a child born outside of a marriage, the man should have DNA testing performed.  If he signs an acknowledgement of paternity without the DNA testing, he will not likely succeed in having the paternity changed later.

Call us at (718) 625-0800 to schedule a free consultation.   During the free consultation, we will inform you of your options and our fees.