father questioning paternity test

Why Won’t The Court Give Me A DNA Test?

Since the age of DNA paternity testing, establlshing paternity is ususally a simple and straightforward matter However, there here 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. This article discusses the most common of these situations that come up in the New York courts.

This article is intended to provide only general information about how New York  courts typically handle these issues, and does not constitute actual legal advice. Also, laws vary in different states. 

I offer a free initial phone or video consultation and will attempt to answer at least some of the questions you may have, and will tell you if I think I can be of assistance, assuming you have an actual paternity, child custody,  or child support case in Court.  

The first thing that you need to know is that you have a constitutional right to counsel on a paternity case. The court is supposed to tell you that you are entitled to a lawyer, and that if you cannot afford one, a free attorney can be assigned to represent you. DNA testing is non-intrusive, extremely accurate, and, if ordered by the court, relatively cheap. 

Your constitutional rights in paternity cases do not include the right to a jury trial, however. 

Finally, it goes without saying , that there can be no child support order or visitation order if paternity has not been established.

In general, both parties to a paternity proceeding have a right to a DNA test.  This right however is not absolute., as there are a number of exceptions. The most common exception is called “equitable estoppell”, which means that the court will not order a DNA test when the Court (usually the Family Court), makes a written finding that a DNA test wpuld not be in the best interets of the child.

Young child confused about paternity

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). But what happens if it is the father who files for paternity, and asks for a DNA test?

Some courts will 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 many 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 used to be  called an order of filiation, but is now called an order of parentage. 

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 him to be in the child’s life and may not care about child support.  In this situation,  if you are a father and you want visitation rights, you will need a new york paternity 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 quite difficult to overcome. Nowadays, the presumption can be broken by DNA evidence. Usually, the court will order a DNA  paternity test in this situation. 

The genetic testing results will either 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.

Because of the extreme accuracy of DNA paternity testing, which must be performed at a certified lab, challenges to positive results 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.

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 in New York,  unmarried people must file cases for paternity, child support, or custody in the Family Court, though married couples often litigate these issues before a Justice of 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 is listed in the judgment of 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.

Equitable Estoppel Cases

I have found that paternity cases often involve the most unusual, bizarre, and complicated fact patterns of all family law cases, which oftentimes result in appellate cases.  I have also found that when I try to explain the way that New York courts use the doctrine of equitable estoppel to deny paternity tests, and to issue paternity orders in situations where everyone knows that the man is not the biological father, the people I explain it to are shocked 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 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 presumed father asks for DNA but someone else asserts an equitable estoppel.

If equitable estoppel is asserted, the court will not order  DNA  testing 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 another man who claims that he has established a relationship with the child.

Once an 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 or hearing. 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.

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.

Typical evidence used at an estoppell hearing includes cards, letters, photographs  and gifts to the child, as well as proof that child support has been paid. 

This type of equitable estoppel will not succeed when the child is a baby or very young. 

The most perplexing cases are ones where the mother 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 the case of Shondel, held that 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 a 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 those visits. In my experience, men typically lose in these situations. This is a situation where you definitely need the help of an experienced New York paternity lawyer.