I recently had a case where the issue of paternity of a child consumed every moment of the client’s life, which put his marriage in jeopardy.  The father believed he was the biological father from the moment he was informed and therefore never gave a thought to taking a DNA test to prove it.  He was present for the birth, signed an acknowledgement of paternity at the hospital (since the parties were not married) and took on all responsibilities of a father.  Three years later, after enduring an emotional roller coaster and paying thousands in child support, DNA results indicated that there was more than a 95% probability that he was not the biological father.  He immediately went to Family Court and filed a petition to vacate the acknowledgement of paternity and to have his court ordered child support terminated.  Now one would think that with the results indicating that he was not the father, this should be a cut and dry case and the court should be more than willing to terminate the order of support.

           However, in New York, once paternity is established, by acts of the alleged father or by signing an acknowledgement of paternity, terminating paternity is not an easy task.  Paternity is established in one of four ways in New York:  1) if the parties are married at the time of birth paternity is presumed;  2) if an acknowledgement of paternity is signed by both parties at the time of birth (or any time after birth at the Department of Social Services); 3) if the parties are not married at the time of birth but marry sometime afterwards, the parties can submit an affidavit to the Department of Social Services and it will be filed; or 4) the parties can file a petition for paternity and get an order of filiation at Family Court. In any of these instances, the father is considered the “legal father”.  Prior to the signing of an acknowledgement of paternity or Family Court order of filiation (even if named as the father on the birth certificate), the father of a child born as a result of non-marital relationship is not the legal father, but considered the “putative father”.  The difference between the two typically becomes an issue mainly with fostercare and adoption.

           Once an acknowledgement of paternity is signed, either party may make an application to court to have it vacated if they believe that the named father is in fact not the biological father.  The petition must be filed within six months of signing the acknowledgement unless it was signed under fraud, duress or material mistake of fact, in which case the period is extended to one year of signing.  The legality of challenging paternity prior to signing an acknowledgement of paternity where there is no contact with the child; prior to signing an acknowledgement where there was contact with the child; after signing an acknowledgement whether there was contact or not; and a child born out of a legal marriage varies tremendously.  In instances where prior to signing an acknowledgment there was no contact between the alleged father and the child, challenging paternity is the least burdensome.  However, in instances where there was prior contact (putative father); or there was an acknowledgement of paternity signed or an order of filiation entered by Family Court; or the parties were married at the time of birth, the burden on the party challenging paternity is much greater and at times impossible.  Furthermore, although the legal time period (statute of limitations)  for establishing paternity is 21 years from date of pregnancy for a child where there is no acknowledgement of paternity and no contact, that period is limited where either the parties were married, there was contact between alleged parent and child, there is an acknowledgement of paternity or court order of filiation. 

           In this particular case, because there was an acknowledgement of paternity and contact with the child, the legal theory of “equitable estoppel” prevents the “legal father” from vacating the acknowledgement of paternity and terminating his obligation to support the child.  The premise behind this legal theory is that in the “best interests of the child” the psychological impact on the child from testing for paternity, the potential strain on the established parent-child relationship and the emotional turmoil of not knowing one’s actual biological father is not worth an actual determination of paternity.  In essence, this means that a non-biological father may be held responsible for providing, at the very least, financial support for the child.   And in an era where more and more children are being born out of wedlock, the potential for this “involuntary surrogacy” is increasing. 

           It is yet to be seen what the outcome of this particular case will be.  However, in the interim those of you facing the dilemma of having a child out of wedlock, establishing paternity early on is tantamount to a lifetime free of playing “involuntary surrogate” to someone else’s child.

If have a paternity case and/or child support case, feel free to contact my office for a consultation.