Paternity Remains a Difficult Legal Issue in New York Family Law Cases


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New York law regarding paternity is closely related to laws regarding the marital relationship. This includes a strong presumption that the husband of a woman who gives birth is the father of the child. State law allows people to rebut this presumption in many cases, such as if someone else claims to be a child’s biological father. A court may determine, however, that maintaining the status quo is in a child’s best interest, even if the person the child calls “Dad” is not, biologically speaking, the child’s dad. In this sense, the paternal relationship is more important than paternal biology. Courts at both the state and federal levels have addressed this issue recently.

Children Born During Marriage

The presumption of paternity in marital relationships can cut both ways, so to speak. Paternity brings with it a wide range of legal obligations to support a child, which some people welcome, while others do not. An individual may claim paternity of a child born to a mother who is married to someone else, or a husband may try to disclaim paternity if he suspects that he is not the biological father. Either way, state law sets a very high bar for anyone challenging the presumption of paternity, requiring clear and convincing evidence. The ultimate determining factor, regardless of the evidence presented, is the best interest of the child.

Children Born out of Wedlock

When a child is born to an unmarried mother, no presumption of paternity applies. State law prohibits the inclusion of a father’s name on a birth certificate unless that person has signed an acknowledgement of paternity, or a court has entered an order finding that the person is the child’s father. If a child’s mother and the acknowledged or adjudged father get married after the child is born, under New York law the marriage “legitimizes” the child.

Establishing Paternity through DNA

A person claiming paternity can petition a court to order DNA testing, or the parties may agree to submit to testing. A court may deny a request for DNA testing, however, for a variety of reasons, including the presumption of paternity or a finding that DNA testing would not be in the child’s best interest.

New York courts have generally held that a physical resemblance between a child and a presumed father may not form the basis of a finding of paternity, going back at least as far as Bilkovic v. Loeb in 1913. A rather unusual 2012 family court case, Matter of Damien v. J.G., held that physical appearance could be a relevant factor in some cases. In that case, the claimant was “dark-skinned and apparently African-American,” the mother and presumed father “both clearly appear[ed] to be Caucasian,” and the children “look[ed] Hispanic.” The children had a close relationship with both the presumed father and the claimant, even referring to both of them as “Daddy,” and the claimant made regular payments for the support of the children. Based on these factors, the court denied the respondents’ motion to dismiss and stated that it would consider a motion for DNA testing if one was made.

Paternity in Federal Cases

A federal court recently ruled that a man could be deemed the father of two children for the purposes of Social Security benefits, even though there were doubts about whether he was the biological father. The court based its ruling, in large part, on a support order obligating the man to pay child support for the children.

For the past 30 years, family law attorney Ingrid Gherman has helped people in the greater New York City area deal with difficult questions involving divorce, child custody, and visitation, and other family court proceedings. Contact us online or at (212) 941-0767 today to schedule a confidential consultation with an experienced and skilled family law advocate.

More Blog Posts:

New York Appellate Court Reverses Order Requiring Supervised Visitation Between Mother and Teenage Children, New York Divorce Attorney Blog, May 11, 2015

Emancipation May Release a Parent from a Child Support Obligation Under New York Law, New York Divorce Attorney Blog, May 4, 2015

New York Courts Consider Questions of Jurisdiction in Paternity, Child Custody Proceedings, New York Divorce Attorney Blog, March 31, 2015


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