Long Island Family Law Attorney: How to Establish Paternity

As a Family Law Attorney practicing on Long Island for many years, I have seen an increasing concern with the issue of paternity, or establishing the identity of the father of those children over the past several years.

Having a child can be one of the most rewarding experiences in a man’s life. For many men, however, things often become difficult when it’s no longer possible to have a relationship with the child’s mother. They then have to face and deal with legal matters like child custody, visitation, and child support, in addition to potentially dealing with the divorce or separation itself.

Paternity testing can be an important issue in many family law cases, however, it’s often overlooked as more pressing matters come to the forefront of the case. Below are some important paternity testing tips for Long Island fathers and how to get the experienced legal help you need in a paternity case.

40% of Children Born in U.S. are to Unwed Mothers

Did you know that, according to the Centers for Disease Control and Prevention (CDC), 40.5 percent of all babies born in the U.S. in 2020 were born to unwed mothers? While this percentage has increased only 0.5% since 2015, establishing paternity is still a large issue for many Americans, and Long Islanders.

What is Paternity?

Paternity, generally, is being legally recognized as a child’s father. In the context of a New York Divorce or Family Court proceeding, it provides you with the legal status as a particular child’s father, with all the rights and responsibilities that come with that designation.

So what does it mean to be a child’s legal father? At a minimum, when you are given the status as a legal father, you now have responsibilities. You are responsible, both legally and financially, for that child. In addition to those responsibilities, you also have rights to parenting time and, possibly, custody of your child. You are entitled to have a meaningful relationship with your child, which most would agree far outweighs any “burdens” placed upon you in your new role.

Establishing Paternity

In New York, there are a few ways to establish paternity. Here, I will discuss the three most commonly used methods:

#1. Marital Presumption

#2. Acknowledgment of Paternity

#3. Court Petitions

#1. Marital Presumption

We’ll start with the most self-explanatory of the three. Marital Presumption is exactly what it sounds like. If a child is born to a married couple, that child is presumptively that married couples’ offspring. While very straight-forward, taking advantage of the Marital Presumption is not always an option. With 40.5 percent of all babies born to unwed mothers, it is there’s a good chance that the Marital Presumption will not apply in your case. You are not alone. Almost half of the children being born today will be born to an unmarried mother.

#2. Acknowledgment of Paternity

An Acknowledgment of Paternity may be utilized if the biological parents of the child are not married. Typically, at the hospital when the child is born, both the mother and father of the child will sign a form stating that the man who signed this form is the father of the child. The original Acknowledgment of Paternity must be filed no later than five days after it is signed.

#3. Court Petitions

If neither of the previous two exist, an alleged father may file a Petition for Paternity with the Family Court. This petition says that, while the mother and alleged father are neither married nor have a signed Acknowledgment of Paternity, the alleged father wishes to establish a legally recognizable relationship with the subject child.

Be advised, however, that this is the least ideal situation of the three. There are a few reasons for this.

First, the Court may order a DNA test for both you and the child. Notice, however, that I used the phrase “may” order a DNA test; not “must”. This is where the Petition can get tricky. Let’s say that Mom has a child out of wedlock. She has the baby and begins dating a person who is not the biological father of the child; let’s call him “Boyfriend”. Boyfriend is a father in every sense of the word except biologically to the child – the child calls him “dad,” he financially supports the child, takes the child to school, to doctor’s appointments, cooks the child dinner, teaches the child to throw a ball and ride a bike. Some time later, Mom and Boyfriend get married and a few years down the road, a person who had a previous sexual relationship (let’s call him “Dad”) with Mom learns that Mom had a baby. The timing coincides with his relationship with Mom and he believes that he is the father of the child. This person files a Petition for Paternity, asking the Court to order a genetic marker test to see if the child is his. In this particular case, the Court may not order the test.

This probably seems incredibly unfair. What if Dad is the biological father, shouldn’t he have the right to a relationship with his child? New York State courts may decide to put the best interests of the child ahead of the alleged father’s rights. If the child has relied on another man’s representations, in this case Boyfriend, that he was the child’s father, ripping the child away from the father he or she knows would likely be incredibly detrimental to the child. In this case, regardless of the fact that Dad might be the biological father of the child, he may not be able to assert his paternity rights. If the Court denies his request for a DNA test, he will not be able to seek custody or even visitation with the child and he will not be financially nor legally responsible for the child. This is why time is often of the essence.

While this may be a bitter pill to swallow, it is best to keep in mind that this decision was made in order to protect the child. Imagine a young boy or girl spending his or her formative years thinking Boyfriend was his or her father and then, all of a sudden, Dad is his or her father. This can obviously cause incredible confusion for a young child, which may lead to emotional or behavioral challenges. This concept is why it is so important to make every attempt to take advantage of your rights as soon as you suspect you may have fathered a child.

If You Weren’t Married, Get a Paternity Test

If you weren’t married to the mother of your child at the time of your child’s birth, you should get a paternity test as soon as possible. Even if you don’t doubt that you’re the father of the child, having paternity legally established at the start of your custody case is in your best interests.

Why Do I Need a Paternity Test?

As stated earlier, in New York, like many other states, married men are automatically awarded fathers’ rights to children from that marriage, regardless of biological connection. If another man claims to be the father of the child or the married man claims not to be the father, a paternity test must be done. This determines which man has legal rights with regard to the child and/or from whom the mother of the child has the right to pursue child support.

However, if no objections are made to the contrary, married men do not have to prove their biological relation to the child to pursue custody and visitation or to be pursued for child support. If you were not married at the time of the child’s birth, a paternity test will need to be done before you can exercise your parental rights or be ordered to pay child support.

Choose the Right Kind of Paternity Test

If your child custody and support case requires paternity to be established, you need to have a legal paternity test done. Any other type of paternity test may not be valid from a legal perspective.

Why Is the Type of Paternity Test Important?

Not all types of paternity tests are considered admissible in court. For example, a home paternity test may give you and your ex some assurance of whether or not you are the biological father of a child, but a court will not accept these results as proof of paternity before awarding custody or making a child support determination.

This is because it’s impossible to prove that a test conducted at home was performed properly or even conducted on the parties involved in the case. To be considered valid by a court, a paternity test must be conducted by a medical professional at a facility equipped to do so without breaking the chain of custody or contaminating the DNA sample.

So You’ve Established Paternity, Now What?

As a result of paternity being established, many new issues may quickly arise. The next major steps will be to get meaningful parenting time and to determine what your new responsibilities entail.

Understand Long Island Fathers’ Rights

Before heading into a custody battle or a child support hearing, you need to have a good understanding of what your rights are as the father of a child in New York.

Why Are Father’s Rights So Important?

While New York courts have made significant progress from the days of assuming that a child was always better off with their mother, some believe they’ve not come far enough. Mothers tend to still be favored over fathers in child custody cases, with the exception of situations that clearly involve child abuse, domestic violence, or drug and alcohol abuse.

Often, fathers’ rights simply remain unaddressed by family courts unless the father of the child is vocal about his right to access his child and make legal decisions regarding their health, education, and wellbeing. However, fathers who are insistent upon exercising their parental rights are generally granted their requests, unless the mother can show evidence of abuse or violence perpetrated by the father.

Contact an Experienced Long Island Family Law Attorney with Your Paternity Questions

If you have questions about establishing Paternity in courts on Long Island, it’s best to contact an experienced Long Island Family Law attorney right away. The family law firm of Hornberger Verbitsky, P.C. can assist you with establishing paternity and advocate for you in court, alleviating some of the stress that comes with the process. Contact our office today at 631-923-1910 or fill in the short form on this page for a free consultation.