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Thursday, May 9, 2019

Why won’t the Court give me a DNA test? Equitable estoppel and best interest of a child in a paternity proceeding, by Brooklyn, New York Family Court Attorney.

Many men in Court face this scenario.  They are petitioned to Court to pay child support for a child they do not know whether it’s  theirs and with whom they have had very little contact with.  These men contact me, a Brooklyn Family Court Attorney and ask me if the Court will grant them a DNA test. I tell them that it is complicated, requires good representation and is based on a number of factors.

 

Another scenario arises where a man, who for various reasons, such as the continuing alienation of the child from him, has not been in his child’s life and wants to be legally established as a father.  Whether this man is granted a DNA test also depends on a number of factors.   

 

Parties to a paternity proceeding generally have a right to a DNA test.  This right however is not absolute.  A DNA test will not be ordered when the Family Court makes a written finding that it is not in the best interest of the child for a DNA test to be done.  

 

The Court will under some circumstances invoke a concept of law called equitable estoppel to prevent the issuance of a DNA test.  This law is based on the assumption that maintaining the child's relationship with the person who has held himself out to be the father of the child is more important than child knowing the true identity of their father. 

 

Furthermore, the law presumes that a child would be psychologically harmed or traumatized if the relationship between  him or her and the man believed to be the father is disrupted.  

 

The Court does not consider what is right or equitable for the parents in cases such as these. The Court will only look at the best interest of the child to determine whether or not the father should be allowed a paternity test.  The point of the law is if the Court finds it equitable to stop the other parent from requesting a paternity test based upon the best interests of the child, it will invoke the principle of equitable estoppel to stop the alleged father from raising a paternity defense.  

 

In determining the best interest of the child in these proceedings, the child’s reliance on the father holding himself out to be their father is paramount.  Thus if the child has relied upon the dad’s representations or actions that he is the father, the Court will prevent the alleged father from asking for a paternity test.  

 

A person can hold themself out to be the father of a child in a number of ways.  They can pay child support to the mother.  They send birthday cards to the child on their birthday. They have the child call them daddy.  They introduce the child to their family as their child. This person calls the child to see how they are doing from time to time.  It is a very good idea to hire a New York Family Court Child Support and Paternity attorney if you want a DNA test in your paternity proceeding and if it isn’t clear whether you have held yourself out to be the father of the child.

 

Furthermore, equitable estoppel precludes (prevents) a man who has claimed to be the child’s father from asking for a DNA test when he has allowed another man to act as the father of the child and has sat on his rights for an extended period of time to develop a relationship with his child.  Thus a man who could biological be the father of a child could essentially be denied the right to find out if he is the father.  The purpose of this is to prevent harm to those who have relied upon the purported biological father’s absence or acquiescence in the life of the child up until the point of asking for a paternity test, and have established their own lives separate and apart from this father. In establishing their own lives the child may believe another man to be the father and disrupting this relationship could harm the child psychologically.  The court would find this not to be in the best interests of the child. Here the alleged father’s failure to promptly assert his right as a father gives rise to circumstances making it unfair or inequitable to permit him to exercise this right as a dad. 

 

If you want a DNA test in your paternity proceeding, call a Brooklyn Family Court Child Support Attorney for help.


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