The question of a child’s paternity is often difficult and fraught with emotion, and New York law does not always offer clear answers. New York has a very strong presumption of paternity in cases of a child born in wedlock. It can be difficult for a person to rebut this presumption. State law allows the mother, a man claiming or disputing paternity, or certain other interested parties to initiate proceedings to determine the child’s paternity, and to make orders on issues like custody, visitation, and child support. A recent case from another state involves an alleged father and a presumed father, and it demonstrates how complicated these cases can become. New York has more than a few of its own complicated proceedings as well.
In a February 2015 decision, Anderson v. Richard, the Kansas Court of Appeals considered whether the trial court erred by dismissing an alleged father’s paternity action for lack of standing and subject matter jurisdiction. The petitioner claimed that he was the biological father of the child and requested genetic testing. He named the mother as respondent in his petition but did not include the presumed father as a party.
The mother moved to dismiss the case, arguing that he lacked standing under state law because the child had a presumed father. The trial court granted the motion, but the appellate court reversed, holding that an alleged father may assert a claim for paternity even if a child has a presumed father under state law. It also held, however, that state law requires joinder of a presumed father, or else the court lacks subject matter jurisdiction. The court remanded the case to the trial court to give the alleged father the opportunity to amend his petition.
New York law generally presumes that a husband is the father of any child born to his wife during their marriage. In the case of a child born to a married woman who becomes pregnant due to artificial insemination with the consent of her husband, § 73 of the New York Domestic Relations Law makes the presumption of paternity irrebuttable. The burden of proof to rebut the presumption of paternity in other cases is quite high, requiring clear and convincing evidence. A woman failed to convince a trial court that the man who raised her was not actually her biological father in 2011 in Montepagani v. NYC Dept. of Health Div. of Vital Records, and the court discussed the standard of proof required in such cases.
Much like the Kansas case mentioned above, New York courts have long held that a mother’s husband is a necessary party to a paternity proceeding brought by someone else. In Matter of Gorton v. Gorton, decided in 1984, an Oneida County Family Court noted that “an adjudication of paternity should, to the extent possible, be the final word on the issue of the child’s parentage,” and it held that this would not be possible if the presumed father were not a party to the proceeding.
Ingrid Gherman has practiced family law in the greater New York City area for the past 30 years, helping people deal with difficult questions in divorce and other family court proceedings, such as child custody and visitation. To schedule a confidential consultation with an experienced and skilled family law advocate, contact us today online or at (212) 941-0767.
More Blog Posts:
New York Judge Criticizes Spouse’s “Emotional Agenda” in Proceeding for Division of Marital Property, New York Divorce Attorney Blog, February 17, 2015
Custody Disputes Between Parents and Non-Parent Relatives in New York, New York Divorce Attorney Blog, January 8, 2015
Daughter’s On-Again-Off-Again College Attendance Not Enough to Delay Sale of New York Marital Residence, New York Divorce Attorney Blog, December 29, 2014