Why New York Courts May Not Give You A Paternity Test

Young child confused about paternity

There are several situations when New York Courts, in particular the Family Court, may be reluctant to order dna tests to establish or rule out paternity.

Father Files For Paternity And Asks For DNA Testing

Usually it is the mother or the department of social services, on behalf of the mother, who files a paternity petition. In this typical situation, DNA tests are routinely ordered (subject to exceptions discussed below) if the father asks for a test. But what happens if it is the father who files for paternity, and asks for a DNA test?

Some courts will occasionally deny the father a paternity test, using the logic that by filing for paternity he is affirmatively claiming that he is the father. In my own practice, this was something that used to happen years ago, but is rare today. If this happens, the easy solution is to have the mother file for paternity instead.

In New York state, paternity is established in 3 ways. First, if the child is born during the marriage. Second, by both parents signing an acknowledgement of paternity. You can tell if there was an acknowledgement by checking the birth certificate. In New York, for some years it has been impossible to add a father’s name to a birth certificate unless there is an acknowledgement or court order.

The third way paternity is established is by a court order. In New York, this is called an order of filiation.

If paternity has never been established, the mother will be unable to get child support from the putative father, but in some situations the mother may not want child support from the putative father, because she does not want the man to be in the child’s life. In this situation you will have to hire a lawyer to help you convince the court to give you a DNA test.

Father Files For Paternity But Mother Is Married To Someone Else

This is a fairly common situation in the New York Family Courts, but is usually not too problematic. The husband must be served with the petition, or at least given notice. The court may accept an affidavit from him that states that the parties were separated and were not having sexual relations during the period of probable conception.

There is a legal doctrine called the “presumption of legitimacy” that states that any child born during a marriage is presumed to be a child of the marriage. In olden times this presumption was stated to be “one of the strongest in the law” and was quite difficult to overcome. Nowadays social mores have changed, and the presumption can be broken by DNA evidence. Usually the court will order a DNA test.

The genetic testing results will usually come in as “excluded” , which means that the man tested could not possibly be the father, or will give a percentage likelihood that the man is the father. In situations where the father is not excluded, the DNA test results will be 99.9% in the vast majority of cases. A result of 95% more is admissible as prima facie evidence of paternity.

Although it is possible to challenge positive test results, because of the extreme accuracy of DNA testing, which must be performed at a certified lab, challenges are rare and are almost never successful. Only very experienced attorneys have any idea about how to even try to challenge a positive dna test. I was successful in one situation in getting the court to order a second DNA test with a different lab.

Father Files For Paternity But Child Is listed As A Child Of The Marriage In Divorce Papers

This situation occasionally comes up in Family Court. It is important to understand that unmarried people almost always file cases for paternity, child support, or custody in the Family Court, though married couples usually litigate these issues in the Supreme Court. Sometimes a father files for paternity in Family Court but it is brought to the judge’s attention that the mother had previously been married to someone else and the child was listed in the divorce as a child of the marriage.

In this situation, the Family Court judge may take the position that he or she lacks the power to override the orders of the Supreme Court because the Family Court is a court of limited jurisdiction. There have been one or two reported cases that stated that the Family Court does have the power to override the judgement of divorce, however to my knowledge these are all lower court cases. I have not researched this issue in some time.

Equitable Estoppel Cases

II have found that paternity cases often involve the most unusual, bizarre, and complicated fact patterns of all family law cases. I have also found that when I try to explain the way that New York court use the doctrine of equitable estoppel to deny paternity cases, and to even issue paternity orders in situations where everyone knows that the man is not the biological father, the people I explain it to are chocked and amazed, even if they are lawyers.

Equitable estoppel comes up in a large number of situations, including same sex relationships and marriages. The most common situation is where a man has become the legal father of a child by signing an acknowledgement of paternity at the hospital at or around the time of birth of the child, but later discovers or believes that he is not the father of the child and seeks to vacate the acknowledgment.

Sometimes there is no acknowledgment, but when the mother files for paternity, the father denies paternity and asks for a DNA but someone asserts equitable estoppel.

In both of these situations if equitable estoppel is asserted, the court will not order a DNA until the issue of equitable estoppel is resolved. It is usually an attorney who is assigned or appointed to represent the child who asserts the doctrine, but it can be asserted by the mother, or even by other men who claim that they are the father of the child or claim that they have established a relationship with the child.when the child is an infant or very young.

Once equitable estoppel is asserted, the child must be assigned an attorney, if this has not already been done, and the issue often requires a trial. The court will want to know if the child believes that someone is his or her father, and if it would be harmful for the child to learn that the man who he has always believed to be the father is in fact not the father.

I will never forget a case where I was assigned by the court to represent a teen aged boy, and the alleged father, who lived in another state was appearing by telephone, while the child was present in the courtroom. The female judge asked the child if he had anything to say to “the respondent” and the child spoke up in a loud happy voice into the microphone “Hi dad!”

Courts will look at the nature and quality of the relationship between the man and the child or children, whether he had acted as the father, had introduced the child to his relatives as being his child, whether he had contributed any child support, had sent the child cards, or gifts, or in certain cases, if he allowed the child to believe that someone else was the child’s father.

The most perplexing cases are ones where the other deceived the man by telling him that he was the father of a child when she knew that someone else was the father. In the past, men who were able to prove that this occurred were able to escape from paternity and child support liabilities by proving that this had occurred. This changed in 2006 when the Shondel case went all the way to New York’s highest Court.

The Court of Appeals in Shondel, held that a equitable estoppel cases should focus on the best interests of the child, not based upon the moral culpability of the parents.

Another perplexing situation is where the man has biological children with a woman, but one of the siblings is fathered by another man and either the mother or a social service agency is seeking to have him declared the father of that sibling. In this situation the man may have visited regularly with all of the children, and claims that he did not wish to hurt the sibling’s feelings by excluding him or her from these visits. In my experience, men typically lose in these situations.

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