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Saturday, July 12, 2014

Druckman v. Ruscitti - Resolving Paternity Disputes in New York

Years ago, the issue of paternity was largely decided on circumstantial evidence.

Today, our Brooklyn paternity lawyers know the process is decidedly less complex, often resolved with a simple DNA test.  When a father is not married to the mother of a child, there is no presumption of paternity absent an acknowledged paternity, signed by the father, or other order of affiliation entered by the court. The latter involves recognition that the man in question is the biological father of the child.

There are often circumstances in which a man alleged to be the biological father may have doubts regarding the veracity of that claim. Before signing an acknowledgement of paternity, it is always wise to request a DNA test.

Bear in mind, however, that should that test confirm paternity, the father becomes legally obligated to pay child support for his offspring, at least until such time the child reaches adulthood. However, absent such a test, the father may not have any legal rights to parenting time visitation or the other benefits parents typically enjoy.

This has more frequently become an issue as more couples are choosing to delay marriage, sometimes deciding never to get married at all.

These matters aren't to be taken lightly, and should always be made after careful consultation with an experienced family law attorney.

In the recent case of Druckman v. Ruscitti, the Nevada Supreme Court was tasked with weighing the extent to which an unmarried father may share custody rights where his paternity is sufficiently established according to statute, but the district court has never established a child custody order.

Here, both parties were unmarried but had a child together. The father signed an acknowledgment of paternity shortly after the child's birth, satisfying the legal requirement for equal custody rights and child support obligations. 

The pair discussed moving out-of-state, but broke up before doing so. The father moved out of the home. The mother subsequently relocated to another state with the child, absent the father's knowledge or consent. The pair had never established a child custody or support order within the district court.

When the father learned of the move, he filed for the child's immediate return, with a request to be awarded joint legal and primary physical custody. The mother filed her own motion, requesting sole legal and primary physical custody of the child.

The district court held that statutes that would normally govern relocation of an established custodial parent (such moves usually have to be approved by the court) did not apply here because there was never a court order. The court subsequently granted joint legal custody to both parties, with primary physical custody going to the mother.

Upon review, the Nevada Supreme Court found that unmarried parents  have equal custody rights regarding their children so long as there is no judicial custody order to the contrary. That acknowledgment of paternity gave the father the opportunity to enter into the custody proceeding as an equal to the mother.

However, because the pair weren't married and there was no judicial custody order, the mother was free to leave the state with the child without court approval. This scenario might have been avoided had the father sought a custody order immediately after separating from the mother.

 If you need to speak with a paternity lawyer in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:
Druckman v. Ruscitti, June 26, 2014, Nevada Supreme Court

More Blog Entries:

Parental Consent for Child Travel, Here and Abroad, June 24, 2014, Brooklyn Child Custody Lawyer Blog


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