As a Family Law attorney practicing in Nassau County and Suffolk County on Long Island, NY, the Law Office of Robert E. Hornberger, Esq. PC is often called upon to represent fathers and mothers in paternity cases in Nassau County and Suffolk County courts.
How Nassau & Suffolk Courts Determine the Child’s Father
Under New York law, there is a rebuttable presumption that the husband of a woman who gives birth during the marriage is the legal father of the child. Therefore, the husband will be considered the legal father of the child even if he is not the biological father. This presumption is rebuttable, meaning that a petition for paternity can be filed to determine if the husband is in fact the father of the child. When a child is conceived through natural methods of conception, there is a rebuttable presumption concerning paternity, but what about when the mother is artificially inseminated?
Domestic Relations Law Section 73
According to New York Domestic Relations Law Section 73, there is an irrebuttable presumption of paternity when a married woman gives birth to a child via artificial insemination when both the husband and wife as well as the physician who performs the service consent in writing. However, there is only an irrebuttable presumption that the husband is the legitimate father of the child if all the statutory elements are met. But what happens when an element is not met?
Artificial Insemination Can Cloud Paternity
Prior to the enactment of Domestic Relations Law Section 73, there was a rebuttable presumption that the husband was the legitimate father of a child born during the marriage even if the husband did not provide written consent. The presumption of legitimacy under common law stems from a strong public policy in favor of the legitimacy of children.
Husband Must Prove He is Not the Father
Upon the enactment of Domestic Relations Law Section 73, if the husband does not provide the requisite written consent and the husband objects to recognizing his status as the legitimate father of the child, then there is no irrebuttable presumption of legitimacy because the statutory requirements were not met. However, even in cases where the husband does not consent and Domestic Relations Law Section 73 is inapplicable, the husband must still prove by clear and convincing evidence that he is not the father of the child. Two major factors to consider are whether the husband held himself out as the father of the child or children and whether he made a clear objection to the procedure. These are only two factors in a complicated web of factors that a judge would need to consider in determining whether the husband has met his burden of proof.
What About Unmarried Fathers?
It is important to note that both the common law presumption of legitimacy and Section 73 only pertain to married couples. How does an unmarried father establish paternity? The easiest method for an unmarried father to establish paternity is through voluntary acknowledgement. If a father no longer wishes to recognize his paternity after a voluntary acknowledgement, he can petition to vacate that acknowledgement within 60 days. However, after 60 days the father must prove that there was fraud, duress or mistake of fact involved in order to petition to vacate.
Paternity Actions in Nassau County & Suffolk County, NY
Another method of establishing the paternity of an unmarried father is to bring a Paternity Action to determine the father of the child. The alleged father may bring a paternity action, but the mother of the child, the child’s guardian, a public welfare official, or as deemed appropriate by the Family Court Act, may also bring a paternity action. The judge has the discretion to allow or deny a paternity action based on the best interests of the child.
Unmarried Fathers Must Act Quickly to Establish Paternity
Pursuant to Family Court Act section 517, an unmarried father has until 21 years from the birth of the child to establish paternity. A putative father who wishes to exercise his paternity rights should do so as soon possible, because unmarried fathers do not have the same parental rights as married fathers. For example, if the father’s parental rights were going to be terminated, only a legal father or a registered putative father is entitled to notice of the potential termination. A legal father is considered a father who has voluntarily acknowledged paternity, or a court has determined his paternal status. A registered putative father is a father who registers his intent to claim paternity with The Putative Father Registry, but he must do so in a timely manner. By registering with The Putative Father Registry, the father has the right to notice of all court proceedings involving the child and the child will then be entitled to inherit assets from the father.
Want More Information?
The Long Island Divorce Attorneys at Robert E. Hornberger, P.C. are dedicated to keeping current on the latest rulings with respect to divorce, paternity and father’s rights in Nassau County and Suffolk County courts and how those rulings can affect their clients. Call us at 631-923-1910 or fill out the short form on this page and we will be happy to demonstrate how we can help you during a free consultation.
