What Are the Paternity Rights of Unwed Fathers?

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Elliot S. Schlissel is a father’s rights attorney who was has been representing fathers in paternity cases for more than 45 years.  Elliot and his staff of attorneys handle divorce cases, child custody and visitation, and all aspects of family law proceedings.  He can be reached for consultation at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email to schlissel.law@att.net.

Same Sex Marriage Does Not Prevent Father’s Paternity Lawsuit

Paternity rights for Long IslandersIn an unusual case in Monroe County Family Court, Judge Joan Kohout was presented with what may be referred to as a modern dilemma. A mother and her same sex wife, had a child born to them during the course of their marriage. Since the child was born during the course of the marriage, they claimed they were the legitimate two parents of this child. They argued in Family Court a man could not bring a paternity lawsuit claiming he was the father of the child. They argued the child had developed an attachment to the mother’s wife and therefore the father should be equitably estopped (barred) from being allowed to prove paternity of the child.

Judge Kohout pointed out the wife had not taken action to adopt the child. She also noted in her decision the mother and the wife were currently involved in a divorce lawsuit.

No Artificial Insemination

Judge Kohout in rendering her decision stated the mother had not been artificially inseminated. She had become pregnant as a result of having sexual relations with the man who sought to prove paternity. The sexual relations took place while she was married to her wife. The mother acknowledged the man seeking to prove paternity was actually the biological father of the child. Judge Kohout found based on these facts, even though the mother and wife were married at the time of the birth of the child, the father should not be precluded from proving he was the actual, biological father. The court took into consideration only 8 months had gone by since the child was born and the father filed his petition. The judge also stated in her decision there was no evidence the father had acquiesced or promoted the wife’s assuming the role of the parent of the child.

Judge Kohout concluded there was neither a presumption of legitimacy nor an equitable estoppel barring the father from bringing the paternity action. The court ordered that genetic marker testing be undertaken to determine if the father was indeed the biological father.


There is a doctrine called equitable estoppel with regard to heterosexual relationships. Under this doctrine, if a man acts as if he is the father of a child for a period of time, and thereafter changes his mind and seeks to have paternity testing to determine whether he actually is the biological father of the child, he should be barred from being able to show he is not the actual father of the child. Equitable estoppel is based under the idea it is in the child’s best interest not to change who the child perceives as his father. This is not necessarily a legal theory the writer subscribes to.Father's Rights attorney on Long Island

Obtaining Custody for Children Born to Unmarried Fathers

father's rights lawyer in New YorkPaternity Proceeding

In the State of New York, a father can sign an acknowledgment of paternity at the time a child is born. The acknowledgment of paternity specifically states that I am the father of this child. If an acknowledgment of paternity isn’t executed by the father at the time of the child’s birth, the first step in obtaining visitation rights or custody is to file a paternity proceeding.

The Paternity Proceeding

The paternity proceeding is fast and simple if the mother simply says, yes he is the father. However, if the mother disputes the fact he is the father or there is a question in her mind as to who the father is, the court in New York will order DNA testing to ascertain whether this man is actually the father of the child.

Custody Petitions and Visitation Petitions

Once paternity is established, the next step is to file an application for custody or in the alternative for visitation with the child. These petitions are filed in the Family Court in the county where the child is located. This petition can ask for sole custody, joint custody, or just simply for visitation. After the petition is filed, the court will make arrangements to serve the child’s mother. The two of you will then have to appear in court on the return date of the petition.

Establishing That You Are The Superior Custodial Parent

If you seek custody of your child, you must show it is in the child’s best interest you be named the residential custodial parent. In addition, you can show why the mother should not have custody of her child. Issues the mother has with drug abuse, child abuse, child neglect, prior history of drug abuse, criminal records, and associating with inappropriate and/or violent individuals can be the basis for your asking for custody of your child.

Visitation With Your Child

If you simply seek visitation with your child, and you have no negative history which would prevent you from having visitation rights, the usual visitation regimen given by the Family Courts in New York is every other holiday, every other weekend, and one dinner during the week. Also, fathers are given access to the child on Father’s Day and the child’s birthday. In addition, the child should be entitled to telephone and Skype contact with the father on a regular basis.


Children have two parents. They should have relationships with both parents. This helps them grow up to be well meaning, well balanced adults.father's rights advocate on Long Island

Boyfriend’s Parental Rights Maintained

father's rights lawyerIn a case of first impression, Matter of A.S. v. B.H., a mother brought an application seeking to set aside an acknowledgment of paternity which had been signed by her boyfriend. The mother claimed after the acknowledgment of paternity was executed, she performed a home DNA test and found out the boyfriend was not the child’s biological father. The mother claimed the child, who was three years old, had special needs and was incapable of bonding with the father. She therefore claimed the father should have no parental rights with regard to the child.

Child’s Bonding with Father

Family Court Judge Michael Hanuszczak found the mother’s argument concerning the child’s bonding ability, “exaggerated and self serving.” He also found her assertions concerning the issue of bonding to be speculative. He went on in his decision to state “under [the mother’s] line of reasoning, a special needs child…would be denied a father if the mother did not lend her approval to the relationship.” He further stated “in cases involving the best interests of a child the court looks beyond any limitations of the child to determine whether a parental relationship exists.”

Family History

The mother and boyfriend had a relationship from time to time. The boyfriend had signed an acknowledgment of paternity when the child was born in December 2011. The mother was unsure of whether the boyfriend was actually the biological father of the child. There was testimony that showed the boyfriend was involved in the raising of the child during the period of time the parties lived together. The boyfriend and the child developed a relationship with each other until such time as the boyfriend’s relationship with the mother soured. She then cut off his relationship with the child.

The Judge’s Decision

Judge Hanuszczak in his decision, ruled it was not in the child’s best interest to vacate the acknowledgment of paternity. He also saw no reason to order the child, who had bonded with the boyfriend, not be allowed to have a relationship with the boyfriend because a situation had been created where it was in the child’s best interest to maintain that relationship. The boyfriend was the only father figure this child knew. The attorney for the boyfriend stated “my client was able to show that he was the sole father figure in this child’s life and to remove him would destroy the parent child relationship.”


This decision is a victory for father’s rights.parental rights advocate

The Difference Between Biology and Law

Paternity can be a difficult issue and can have life-changing effects if not properly established and accepted. Obviously every child has a biological father, however, if a child is born to two unwed partners, that child is defined as not having a legal father. This means that no man has any legal rights or responsibilities when it comes to the child and the child may ultimately suffer by not having the same benefits and rights as children of a married couple.  In order for the child and father to receive these rights the paternity must be established.  There are two ways that an unmarried partnership can establish paternity: first, the father can volunteer to sign an Acknowledgment of Paternity form or secondly, both parties can apply to the court to determine paternity. These and other paternity matters, including child support issues can be dealt with at a good family law firm.

The Child’s Birth – And What Men Should Know

When a child is born, the mother’s husband is automatically that child’s father in the eyes of the law, unless a court determines otherwise. The legal process to determine another father for the child outside of the marriage will usually include a court hearing, whereby the mother, her husband and – often – the biological father of the child will give their evidence or written testimony establishing the facts of the case. DNA tests are often included in these court hearings. Such proceedings are quite straightforward, and can be handled very efficiently by a good family law department. If, however, there’s a case of contested paternity, the court usually orders a genetic marker test – or a DNA test – to determine the paternity of a child. These cases can get a little messier: in its most basic form, the case itself indicates that the father does not believe himself the father of a child. In some cases, the mother may not be entirely sure of paternity and therefore all parties require a DNA test to establish whose responsibility the child is. These issues can become very heated between parties – but are quickly determined by the DNA test, so long as everyone agrees peacefully to follow this genetic marker route.

Rights of a Father Before Birth

An obvious ethical and legal question is: at what point does a father become the father of a child? This is part of a much larger question: when does a life become a life? That we won’t delve into here. However, since abortion is a highly contentious topic at the best of times – with pro-lifers and pro-choice campaigners never agreeing on when a life begins, nor whether the rights of a baby begin at time of birth or earlier – we can see that paternity issues only exacerbate these issues. Naturally, views on abortion – and certainly the question of who has a right to decide whether an abortion can be carried out – are further complicated when there is argument over the unborn child’s paternity. At the moment, the law states that the decision to abort rests with the mother but it’s a generally contentious issue. If anything ever did change, there are fears that if fathers are granted the ability to deny a woman the right to abort a fetus, perhaps this power would extend further: could it extend (or at least have implications for) her choice of birth control or access to emergency birth control? As Kwik Med states, “the main ethical objection to Emergency Contraception (EC) is that it is a form of abortion. These objections hinge on the definition of when pregnancy begins. The most common scientific view is that pregnancy begins when the embryo becomes embedded in the uterus, while, for most objectors, it is at the point of conception. The latter view leads to the possibility that any method that potentially destroys the embryo can be seen as a form of abortion”. We see from this that the topic is a tangled and fascinating one, even without the difficulties of a contested paternity.

What’s The Future?

At the moment, legalities surrounding paternity are pretty clear cut: if a man signs an Acknowledgement of Paternity form at the hospital or shortly afterwards, there is no issue and he acknowledges himself as the child’s legal father. Also, if the unmarried couple decide to go to court to legally declare the child as belonging to both of them, the hearing is quite short and uncomplicated, simply involving an acknowledgement by both parties that this is the case. As we know, areas that will continue to gain much attention are the rights of fathers – particularly in abortion cases. Although at the moment, the law favors the female’s rights over her own body, (meaning that she need not seek permission from her partner in order to abort their baby) we can imagine that in the future – with more use of frozen embryos, for example – this view of the woman’s sole right over her body may be slightly altered. We can anticipate that this position will continue to be reviewed and debated – and this will no doubt prove to be a very hot topic over coming years.

This article was presented by a guest author, Melissa Johnson.

Challenging Paternity

father's rights lawyerIn a case before Judge Lubow, in the Queen’s Family Court, a father brought a proceeding to vacate an acknowledgment of paternity. He claimed he had been fraudulently induced into signing the acknowledgment of paternity.  His papers stated, he relied on the mother’s contention he was the biological father. She had advised him she had been separated from her husband for a substantial period of time, and she didn’t  have sex with anyone else.

DNA Paternity Testing

            The father now claims DNA testing has shown he is not the father. The Court, in its ruling, stated that there is a presumption of legitimacy regarding a child born during the marriage. The presumption is the child is a biological product of the marriage. This presumption, the Court stated, should only be rebutted by “clear and convincing evidence tending to exclude the husband as the father or otherwise disproving legitimacy.”

Mistake Of Fact Or Fraud

            In this case, the Court found there had been a detrimental reliance on a mistake of fact or fraud. The Court found it was not in the child’s best interest to leave this question up in the air. The court ordered official DNA testing. The court stated, if it found the biological father was the woman’s husband the acknowledgment of paternity would be stricken. However, if it found that he was the biological father he would still be able to petition for visitation with the child.paternity assistance for fathers