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The Gilmer Law Firm, PLLC

Thursday, May 19, 2011

How do I get a paternity test to stop paying child support in New York? Should I take a paternity test? By Brooklyn, New York Paternity and DNA Test Attorney

Hello, I am a Brooklyn based Family Court Attorney.  There are some fathers that have been brought to Court on Child Support proceedings that doubt that they are the real father of the child in question. When a child is born to parents that are not married to each other the biological father is not considered the child’s legal parent unless the father has signed an  Acknowledgement of Paternity or if an “order of filiation" has been entered by the court declaring the person to be a biological father. In either case, when a man is determined to be the biological parent of a child, he has an obligation to pay support for that child. A paternity petition may be filed by either the mother or alleged father or by the Department of Social Services if the mother is receiving Public Assistance.  The person who files is called the Petitioner and the Petitioner must serve the Respondent at least eight days prior to the Court date.

There are circumstances where some alleged fathers may not believe that they are the real father of the child in question.  If the mother was not married to you at the time of birth and married to someone else, but claims that you are the father, the person that the mother was married to is going to be presumed to be the father, unless the  Family Court determines otherwise.  In this situation, a petition that is filed to determine Paternity, will need to be legally served on the alleged father and the person with whom she was married to.

 

Once filed all necessary parties will be notified to come to Family Court, for example Kings County Family Court in Brooklyn, and appear before a  Support Magistrate. Once the paternity case starts the first issue that needs to be determined is whether the court has jurisdiction over the necessary parties. The person who filed may be required to file an Affidavit of Service to prove who was served. If you were not served properly or not served at all, you have the right to dispute service and if the court believes you, the Petitioner will have to file again.

Next the Support Magistrate will ask the presumed father if he admits to being the father of the child. If you are asked this question, you also have the right to say no and ask for a paternity test.  There are occasions however when the Court will be inclined not to grant a DNA test.  One common situation is where the alleged father of the child has signed an  Acknowledgement of Paternity. A signed cknowledgment of paternity signed may be rescinded by the mother or the alleged father by filing a petition with  the  court  to  vacate  the acknowledgment  within  the earlier of sixty days of the date of signing the acknowledgment or the  date  of  an  administrative  or  a  judicial proceeding  (including  a  proceeding  to  establish  a  support  order).

After this sixty day period elapses, the alleged father will have a much harder time vacating this Acknowledgement of Paternity. He will have to prove some type of  fraud or duress in the signing of the document. In one of my cases, the support magistrate agreed with my client, and held that my client was coerced into signing the acknowledgement of paternity because the mother of the child threatened to tell my client’s wife about his alleged infidelity. If this can be proven the court may grant a paternity test.

Before ordering the paternity test, even if there is no Acknowledgement of Paternity or the Acknowledgment of Paternity was vacated the Court may still order a hearing on the issue of  Equitable Estoppel. Here the court will determine whether the father has, despite now claiming he is not the father of the child, held himself or acted as the father of the child prior to the filing of the paternity petition. 

 

This is obviously a very important hearing. On the one hand, if you have acted as the father of the child that you now claim is not yours, and a paternity test confirms this, the child in question could be traumatized severely. Imagine if the person you thought was your father, in some cases for many years, was not your father.  The court will appoint a  Law Guardian to the child to make sure the child’s rights are protected. The law guardian will either testify or file a report with the Court in reference to their opinion as to whether a parental bond exists. The Law Guardian’s position, although advisory, is a very important one in helping the court determine the issue of estoppel.

On the other hand, I have represented clients who have either paid child support for eighteen years or who have had judgments entered against them in the hundreds of thousands of dollars for unpaid child support for children that turn out not to be theirs. The issue of estoppel is thus a complicated issue.

After paternity has been decided, if the custodial parent seeks an order of child support, or is receiving public assistance for the child, the Magistrate will conduct a support hearing.

I represent have represented many fathers in disputed paternity proceedings. I am an experienced Family Court attorney with Law Offices in Brooklyn, New York. Please visit my  website for other practice areas.


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