Oftentimes, the paternity of a child is established at birth. If the two parents of the newborn are married, paternity is automatically assumed and the husband’s name is added to the birth certificate. If two parents are not married and they bear a child, the biological father of that child is not considered a legal parent until he declares himself as the father. This is can be done by establishing paternity through the court system, or by signing an Acknowledgment of Paternity at the hospital at the time of the child’s birth if both parents are in agreement.
Article Written By Jessica H. Ressler. All Rights Reserved
Paternity is important to establish for a number of reasons. Chief among them is that it creates a legal relationship between the child and his/her biological father where there is none. This allows for the father to provide medical insurance, social security and veteran benefits, and inheritance rights for the child. The legal relationship also establishes a legal right to custody and/or visitation. It also creates the obligation to pay financial support for the child. Without paternity, these remedies to family matters cannot be established through the court system.
If there is a question of paternity or an issue arising from the birth of a child and paternity has not been established, a petition may be filed in Family Court seeking an “Order of Filiation,” which names the father of the child and gives him certain paternal rights, including custody and visitation. An Order of Filiation also establishes child support that is to be paid for the child.
In New York, a Petition for an Order of Filiation is brought in Family Court in the county of residence for either the person filing the petition – the Petitioner – or the person against whom the petition has been filed – the Respondent. As the person filing the petition, the Petitioner can be a mother of the child whose paternity is in question, the person who believes themselves to be the father of the child, or the legal guardian of the child. In some cases where the child is receiving public assistance, the Department of Social Services can bring a petition forth to establish paternity, as can be done if the alleges biological father has passed away.
Once a petition has been filed with Family Court, the Respondent must be served with a copy of the petition and a Summons, which advises the Respondent when and where to attend court. Paternity cases are heard before Judges or Support Magistrates, and it is up to the Petitioner to prove the paternity they have alleged in their petition.
If both parties agree about the question of paternity, the Order of Filiation may be signed on consent by the Judge or Support Magistrate and paternity would be legally established. If however, the parties disagree on the identity of the child’s biological father, the Court may order a DNA test to be performed, and the case would be postponed until that has been done. If the results of the DNA test are still in question and the Respondent denies paternity, the parties are given a chance to testify before the court and provide witnesses and proof to argue their positions. In such cases, the court would make a determination of paternity after weighing all of the facts and testimony provided.
Once the court has decided paternity, the biological father’s name would be added to the child’s birth certificate and a legal relationship between father and child would be established. With that, either parent can seek separate orders for custody, visitation or child support should they so choose. These matters would be handled separately but would also take place in Family Court.
As with most legal matters, both sides are able and encouraged to seek counsel to represent them. If you are unsure about your child’s paternity and need to establish a legal relationship with them, feel free to contact the experienced attorneys Ressler & Associates to guide you through the process.