Frequently Asked Questions About Paternity
Paternity refers to a legal father of a child. In many family law cases, paternity is a hot topic when it comes to establishing fathers’ rights and determining custody, support, and visitation. Without establishing paternity, a family court will not be able to determine these important elements and the child and mother may suffer, as a result. Given how sensitive and complicated this matter can be, it will benefit you to understand what paternity entails and what the process looks like, whether you are a mother or biological father.
For this reason, our attorney answers 7 frequently asked questions about paternity below. Should you have further questions, please get in touch at (845) 605-4330!
What Is a Paternity Case?
A paternity case arises when a child is born out of wedlock, meaning a child is born to parents who are not married to each other. Given this circumstance, a biological father is not considered a legal parent unless they sign an Acknowledgment of Paternity at the hospital when the child is born to declare themselves the legal father. The biological father could also sign an Order of Filiation to declare that they are the legal father, which brings us to our next point.
What Is an Order of Filiation?
If an unmarried mother and father don’t sign an Acknowledgement of Paternity or the mother is married to someone who is not the biological father, an Order of Filiation can be issued. An Order of Filiation is a court order that names the father of a child and gives them the right to custody, visitation, and child support. It can also be used to change the child’s last name and order a new birth certificate.
Keep in mind that if a mother and father sign an Order of Filiation on consent, they are confirming that the father is really the child’s biological father, and they don’t need a DNA test to prove it. For these reasons, it is very difficult to change an Order of Filiation on consent. Note that the Order of Filiation can be signed "on consent" if:
- The mother was not married when the child was conceived or born, and both the mother and father agree that the man is the father
- The mother was married and all three parties (the mother, the husband, and the biological father) agree
Can You Cancel an Acknowledgement of Paternity?
If the biological father or biological mother wants to cancel the Acknowledgement of Paternity (AOP), they may file a petition to vacate the AOP with the court. If either parent was 18 or over when they signed the AOP, the deadline for filing the petition is one of the following, whichever is earlier:
- 60 days after signing the AOP
- 60 days after having to answer any court petition about the child
On the other hand, if either parent was younger than 18 when they signed the Acknowledgement of Paternity, then they must file the petition to vacate the AOP by one of the following deadlines, whichever comes earlier:
- 60 days after reaching age 18
- 60 days after answering any court petition about the child if the parent was advised of the right to cancel the AOP at a proceeding related to the child
From there, the Support Magistrate will determine whether the AOP should be canceled based on the facts presented at the hearing and the child’s best interests. If a parent misses the deadlines listed above, they must show proof of fraud, duress, or material mistake of fact in order to have a chance of getting their AOP canceled.
Who Can File a Paternity Case?
Only certain parties can file a paternity petition. The person who starts the case, or the “petitioner,” can be:
- The child's mother
- A man who believes he is the father
- The child or child's guardian
- The Department of Social Services if the child is getting public assistance
The person whom the case is filed against is the "respondent.”
What If the Mother Was Married to Someone Else When the Child Was Born?
If the mother was married at the time the child was conceived or born, her husband is the legal father of the child even if he is not the biological father, unless the court establishes otherwise. Thus, a copy of the paternity petition must be served upon the husband before a judge can make a ruling on his relationship with the child. If the judge rules that the husband is not the father, then the case may continue against the other alleged father.
What Happens at the Paternity Hearing?
The paternity case will be heard in front of a judge or a Support Magistrate. The outcome of the hearing will depend on the circumstances involved, so if the mother was unmarried at the time her child was conceived or born and the respondent admits he is the father, an Order of Filiation will be entered.
However, if the respondent claims he is not the father, the Support Magistrate will order blood or DNA tests and set another court date once the results are in. On that court date, the Support Magistrate will examine the test results and determine whether or not the respondent is the biological father. If the respondent admits paternity, then an Order of Filiation will be entered, but if he doesn’t admit paternity or the parties can’t agree on paternity, then a court hearing will be scheduled.
At the hearing, both parties may testify and present witnesses as well as present the blood or DNA test results as evidence. If there is sufficient evidence of paternity, then the court will enter an Order of Filiation and if not, the petition will be dismissed.
Once paternity is established through an Order of Filiation, another court hearing may be scheduled to determine child support if the custodial parent wishes for it. Other court hearings to establish custody and visitation rights may be scheduled as well.
What Are Some Benefits of Establishing Paternity?
As you can see, establishing paternity depends on several factors and considerations. However, the end result can be priceless for both parents, but especially, their children. That said, the benefits of establishing paternity of a child include, but are not limited to:
- The child is emotionally secure in knowing who their parents are
- The child receives financial support from both parents
- Legal documentation that identifies both parents
- Both parents’ names are on the child’s birth certificate
- The child can access their family medical records and history
- The child gets the right to inherit from either parent
- The child gets the right to receive social security and veteran’s benefits, if applicable
- Having both parents in the picture directly contributes to the following benefits for the child:
- Better school performance
- Reduced drug abuse
- Less crime and delinquency
- Fewer emotional and other behavior problems
- Less risk of abuse and neglect
- Lower risk of teen suicide
Questions About Paternity? Let’s Talk About It.
With all the information above in mind, you can see that paternity plays a key role in custody, support, visitation, and fathers’ rights. Paternity can be established not just for clarity but more importantly, for the child’s wellbeing. That said, if you have questions about the paternity process in New York and how it affects your custody, support, and visitation rights, among other key legal rights, we welcome you to discuss your situation with our Orange County divorce lawyers at the Law Office of Dennis R. Vetrano, Jr., LLC.
Get in touch online or at (845) 605-4330 today!