Paternity:

If the parties were not married at the time of birth of a child, legal paternity may only be established by signing an Acknowledgment of Paternity (either at the hospital or at the local Department of Social Services) or by the Family Court entering an Order of Filiation. Where the parties are married at the time of birth, then paternity is presumed to be that of the husband. An Order of Filiation may only be issued by Family Court, although in rare circumtances the Supreme Court will enter such an order. Either party may petition the Family Court for paternity, from pregnancy up until the child reaches 21 years, except in certain circumstances. A paternity proceeding is usually brought to establish paternity for child support, child custody, child visitation matters or just to establish the legal father and adding the father's name to the birth certificate.

The child must be a resident of New York, because unless the father consents to an Order of Filiation once the paternity proceeding has started, there may be DNA tests required. Where DNA tests are ordered, the court may direct that either party pays, both parties pay or the state pays for the costs of these tests, all depending on the resources of all parties. If the father is determined to be the father and he is the one who filed the petition, the court will probably direct that he pays the cost for the DNA test.

Paternity and Child Support:

It is important to establish paternity as early on as possible. Once an Acknowledgement of Paternity is signed it may not be vacated after six months of signing, unless it was signed by fraud, duress or material mistake of fact the that period is one year. Once child support is provided, whether by court order or agreement, having the child support terminated is very difficult. The court can impose the legal theory of "equitable estoppel" to prevent the alleged father from terminating payments, even if he is not the biological parent. This theory is based on the premise that it would be psychologically, emotionally and socially disadvantageous to the child to have paternity determined, to have a paternity order vacated and/or to have child support terminated.

Legal Father vs. Putative Father:

Having one's name on the birth certificate, providing emotional and/or financial support or holding oneself as the father makes one the "putative" father. That person will be named in the New York State Putative Father Registry and requires notice to such father in the event someone tries to adopt the child, the child is placed in foster care or if someone is seeking child custody or guardianship. However, signing the Acknowledgement of Paternity, having an Order of Filiation or having been married to the mother at the time of birth makes one the "legal" father. And although the rights and responsibilities are minimal, there is a legal difference between the two.

Name Change:

Any United States citizen or resident may legally change their name as long as they can prove that there are no intentions to defraud creditors or to avoid criminal prosecution. You must have a certified copy of your birth certificate, valid U.S. passport or green card to file a name change petition. An adult name change is done in Supreme, Civil or Surrogate court in the county of residence. A child name change can be done in Family Court. A copy of that child's birth certificate, U.S. passport or green card is necessary. If a petition is filed to have the child's name changed to the father's, paternity must be established first. The father of the child must consent to the name change.

Contact our office to get a free phone consultation.