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We Know Who the Mother is, But Who is the Father?

father's rights lawyer in New York

Mother’s carry their children to term so we know who they are. However, the identity of the father may not be obvious.

Paternity Proceedings

Paternity actions are designed to establish who is the father of the child. These proceedings are brought in the Family Court in the county where the child resides.

If a mother brings a paternity proceeding against the father in the Family Court, the father can either consent to a ruling he is the biological father or he can challenge the mother’s request to have him named as the biological father. If the father disputes the mother’s claim the Family Court will order DNA testing to determine whether he is the biological father of the child. The DNA testing is in more than 99.99% accurate with regard to establishing whether the man who is the subject of the paternity proceeding is the actual biological father of the child.

DNA Testing

If the DNA testing comes back with a negative result indicating the father does not share DNA with the child, the paternity proceeding will be dismissed. If the DNA test comes back with a positive result the court will enter an order of filiation establishing the man is the legal father of the child. In this situation the father would then be Attorney Elliot Schlisselentitled to visitation and/or possibly asking for custody of the child. The downside is the father will then be obligated to provide child support for the child. In addition to basic child support obligations the father may also be required to provide medical insurance for the child.

The law offices of Schlissel DeCorpo LLP have been representing clients in paternity cases throughout the Metropolitan New York area for man than 30 years.

The Father Challenges Paternity – Court Denies Request for Paternity Testing

A childs hand in it's fathers hand

In a case before Supreme Court Justice Elisa Koenderman sitting in Queens County, Supreme Court, and a father had requested a paternity test and Justice Elisa Koenderman denied his request.

The Case

The case involves a husband and wife who were married in 2011. The wife gave birth to a son “LP” in 2012. A divorce action was initiated in 2015. However, at the time the divorce action was brought LP was living with the wife’s parents in China. This was pursuant to an agreement the parties had. Thereafter LP came back to the United States in 2016.

Husband Requests Visitation

After LP returns to the United States the father requests visitation with him; The mother grants his request and he starts seeing his son. Thereafter the father brought a proceeding before Justice Elisa Koenderman requesting an order from the Judge to have all parties’ paternity tested to determine whether he is really the father. The child’s mother and an attorney appointed to represent the child oppose the father’s application for paternity testing.

Presumption of Paternity

Justice Koenderman renders a decision against the father. She ruled that the presumption a child born during the marriage and the biological product of the marriage is “one of the strongest and the most persuasive known to the law.” She also brings up a theory called equitable estoppel.

Equitable Estoppel

Under equitable estoppel a person is prevented from asserting a claim which would prejudice another party. Here the Judge held the husband is equitably estopped from challenging the paternity of LP. He has previously represented himself to be LP’s parent. He has visited with LP. No evidence has been presented that the wife engaged in sexual relations with anyone else other than the father during the course of the marriage. In addition, the father continually presented himself as LP’s natural father in numerous ways. Judge Koenderman therefore ruled the father had not been able to rebut the presumption LP was a legitimate son and therefore his motion for an order allowing paternity testing was denied.

Conclusion

Fathers be careful. If you hold yourself out to be a child’s father the court can stop you from later demanding paternity testing to see if you are really the biological father.

Attorney Elliot SchlisselElliot S. Schlissel, Esq. is a father’s rights attorney who has for more than 3 decades has been representing fathers throughout the Metropolitan New York area on issues involving custody, visitation and child support.