If a father wants to assert his right to custody or visitation of his child, he needs to establish his paternity legally in a way that courts recognize. Of course, in most situations, the father is married to the child’s mother at the time of their child’s birth. In this case, New York paternity laws presume the father’s paternity. The married father’s name would be on the child’s birth certificate.
Establishing paternity is not only important to the father. It is important to a child, because it gives them access to financial support, medical benefits, and the right to an inheritance.
A child’s parents may not be married to each other when the child is born. However, they may agree on the father’s paternity. In this situation, the parents can always complete a New York acknowledgment of parentage form. Both parents are required to sign the form. Also, two people who are not related must witness the signing. This is often done at a hospital when a child is born, but it does not have to happen at this time and place to have legal effect.
Parents who live in different states could use this form to establish the paternity of a father who lives in a state other than New York.
There is another way to establish the legal paternity of a father in New York state. The custodial parent, the child’s mother, may file a petition with the New York Family Court asking the court to determine the legal paternity of a father and then to issue an Order of Filiation, if it finds that the alleged father is the biological father.
After the petition is filed, the court would order a genetic DNA test of the alleged father, the child and the mother. Then it would determine whether or not the alleged father has legal paternity on the basis of the test results.
If a couple has had a child through a surrogacy arrangement, they should produce a surrogacy agreement. This would serve as proof of paternity and establish the legal paternity of the father. In a situation in which a child is born through surrogacy, the parents could also establish the legal paternity of the father by producing a document that shows the consent of each parent to the use of assisted reproduction technology to have a child.
If the alleged father of a child lives in a state other than New York, a mother needs to determine whether that state or New York state has the authority to determine legal paternity. The Uniform Interstate Family Support Act (UIFSA) usually applies to this issue in New York and other states also. It makes the law the same in most U.S. states.
The general rule is that a court in the child’s home state has the authority to determine legal paternity. The “home state” is the state in which the child has lived with the parent who has custody for at least six consecutive months before the paternity case is filed in court in that state. The home state of a child who is under 6 months old is the state in which the child has lived since birth.
So, if a parent’s child meets this residency requirement in New York, then the parent can file a paternity petition seeking an order of filiation in a New York court. Out-of-state father paternity is generally going to be determined in the same way it would be determined for an in-state parent, and that is through DNA testing.
Of course, if New York is not the child’s home state based on the general rule, New York might still be the child’s home state. The mother would just have to prove sufficient connections to the state to qualify New York as the child’s home state.
It is possible that in some situations, New York would not be the child’s home state. In this situation, a mother might have to go to court in the state in which the father lives to prove legal paternity. She would need the assistance of a New York attorney or a legal aid organization.
A legal consultation in New York with a New York lawyer would be a good idea in such a situation.
How Can Administrative Agencies Help Establish Paternity in New York?
In New York, the state’s Child Support Enforcement Unit (CSEU) is the agency that has the authority to establish a child’s legal paternity and then to enforce court orders, e.g., orders for child support enforcement. The New York CSEU can help in a number of ways.
It can help a mother find their child’s biological father. It can help get genetic testing of the father, even if he lives in a different state. The CSEU can assist a mother in going to court to get an order that directs the biological father to pay child support.
The CSEU can also help a father who wants to establish his paternity in order to assert his right to custody or visitation. All parents, regardless of their financial status, may access the CSEU’s help. The CSEU works to make sure that children get the financial support they need.
Other people and entities that can help a person establish legal paternity in New York or in another state are legal aid organizations, family court facilitators, and private New York family law attorneys.
How Can a Court Order Establish Paternity in New York?
In New York, a court “order of filiation” is the court order that declares that a certain person is the legal father of a child. A person who wants to establish a father’s legal paternity should file a petition in a New York Family Court seeking an order of filiation.
If a mother were to file a petition, serve it on the father as required by law and the father fails to answer, the mother could obtain a determination of legal paternity on the basis of a default judgment.
What if Paternity Is Established in Another State?
As noted above, the state that has the authority to determine legal paternity is the home state. The UIFSA usually applies to this issue and makes the law essentially the same throughout the U.S.. If another state is a child’s home state, then a court in that state has the authority to establish a father’s legal paternity.
Under the UIFSA, if a court in the home state makes a determination about legal paternity and other related issues, e.g., child support, it has the sole authority in the case going forward to decide all issues related to the child.
The consequence of this is that as long as one of the parents or the child lives in that state, a court in that state would be the only court that can issue orders, such as orders requiring payment of child support or modifying custody.
A parent who lives outside that state, in New York, for example, would have to go to a court in the other state to seek any court orders in the case. A parent in this situation wants to consult a New York family attorney.
What if My Child’s Father Is on a Military Base Overseas?
If the alleged biological father of a child is on active duty on an overseas military base, the mother is still able to go forward with a petition seeking to establish his legal paternity in most cases.
If the alleged father accepts his paternity, he can indicate this to a New York court. The court can issue an order of filiation on that basis. In addition, the mother would then be able to get an order directing the father to pay child support. She could then provide the military legal assistance office with a wage withholding order.
Then the office would be able to forward to the mother the amount of wages necessary to cover the military parent’s child support obligation to their child.
If a father who is on active duty does not accept their biological paternity, he has a right to stop the paternity proceedings until he leaves active duty. The federal Servicemembers Civil Relief Act gives the father this right, and it means that the mother may have to wait until the father is no longer on active duty to determine paternity and start receiving child support.
Once the father leaves active duty, paternity proceedings can move forward and a New York court can make all the appropriate orders based on the results of DNA testing and the best interests of the child standard.
What if My Child’s Father Purposely Leaves the State To Avoid a Paternity Judgment?
If a child’s father intentionally leaves New York with the aim of avoiding a determination that he is the legal father of a child, the UIFSA makes it possible for the mother to determine paternity in New York all the same.
If the father should fail to respond to a paternity petition, the court would then enter a default judgment. This would establish the father’s legal paternity, and the father would have to go to court and submit to DNA testing to try to prove that he is not the biological father.
A parent who faces these challenging issues would want to consult a New York family law attorney to discuss possible solutions.
How Does Out-of-State Paternity Affect Child Support Payments in New York?
As has been noted, the court judgments and orders regarding paternity and related issues from courts in other states must be given effect by New York courts. New York courts must enforce the order of a court in another state directing a father to pay child support to a custodial mother in New York.
If the mother were to want to modify a child support order from another state, they would have to go to court in that other state to do it.
Do I Need a New York Family Law Attorney to Establish Paternity for a Father Who Is Out-of-State?
If you have a dispute with your child’s father about legal paternity, you want to talk to a New York paternity lawyer. As you can see from the information above, a lot depends on the specific facts of your case. Your lawyer will review the facts of your situation and can then guide you through the process that is needed to get you to the result you want.
