DISESTABLISHMENT OF PATERNITY

About one-third of all children born in the United States each year are born to unmarried parents. In order to have a legally recognized relationship with their fathers, these children must have their paternity established. Historically, the only way to do this was for the mother (or the state if she was indigent) to file a paternity suit. More recently, however, federal law has established a framework that provides two options:

-Either parent may bring a paternity suit to establish the relationship. If either parent requests, the court will order genetic tests. Then, on the basis of the test results, paternity will either be established or refuted. If paternity is established, the court will enter an appropriate order, including an amendment to the child’s birth certificate to reflect the name of the father and child support will generally also be ordered.

-Together, the parents can voluntarily acknowledge paternity. Before signing this acknowledgment, the parents must be advised of the legal consequences of signing this document. Here, no paternity order is issued; the acknowledgment itself is the legal finding of paternity and is entitled to full faith and credit in other states.


In many states, there is also a third way to establish paternity: by conduct. States that adopted the Uniform Parentage Act (UPA 1973) have authority to presume that a man who receives a child into his home and openly holds out the child as his natural child is the child’s father.

What if a man signs the acknowledgment of paternity, mistakenly believing himself to be the biological father of the child in question? Problems arise when someone later wants to challenge a child’s paternity or when the real biological father unexpectedly becomes present in child’s life.

These situation call for so called disestablishment of paternity, which is a very controversial and hot topic in domestic relations law. A lot of states have trouble regulating this issue and a lot of them have not done so yet. The concept of "the best interests of the child" has been used to argue both for and against paternity disestablishment. However, in this area, there is great divergence among the states.

Typically, the question arises in deciding about the role of genetic tests. In some states, courts have found that the child's best interests are irrelevant, meaning that, if genetic tests show the acknowledged, presumed, or adjudicated father is not the biological parent of the child, the issue is resolved even if there is serious and demonstrable harm to the child.


If you think you may be eligible for disestablishment of paternity, you should ask yourself the following questions:

1. Was the DNA test done?

2. Was the child born during the marriage?

3. If the child was not born during the marriage did you (the alleged father) sign the acknowledgement of paternity. If the acknowledgment was signed, then the alleged father can rescind it only on the basis of duress, fraud or material mistake of fact (1/3 of states do not have specific statutory process rescinding paternity acknowledgments, in New York it's a judicial process, in other states it's administrative). Under UPA-Uniform Parentage Act-there is a time limit to file for disestablishment of paternity, which is 2 years after signing the acknowledgement.

4. If the parties were married, when exactly did the ex-wife tell you that you were not a biological father? Did she lie to you all those years, pretending like you were the real father. Remember, if you found out a long time ago it may be too late to file for disestablishment.

5. Were you living with the mother and the child since the child was born? How long did you live with them?

6. Does the child call you "dad/father"?

7. Is the child very attached to you, in such way that it would be traumatizing for the child to find out that his "dad" is not in fact the real dad?

9. Has the Supreme Court decided about the paternity, meaning have you admitted during the divorce proceeding that you were in fact the father? If there is a formal child support order in the divorce decree, then it might be hard to argue for disestablishment of paternity. In situation, it is so called res judicata and you would have to file a motion in Supreme Court to amend such divorce judgment.

Pursuant to NY Family Court Act §516-a, “father” can petition for Rescission of Voluntary Paternity Acknowledgment, and it can only be used if he signed an Acknowledgment of paternity. Also, Social Services Law §111-k(2)(a) mentions the issue of disestablishment. It states that either signatory (either parent) can file a court action to vacate the acknowledgment, within 60 days of signing the acknowledgment. Also, after 60 days, either parent can challenge the acknowledgment in court action based on fraud, duress or material mistake of fact.

In either case, upon receiving the challenge, the court must order genetic tests and determine paternity as in any contested case.

It appears that the Social Services Law allows the court to decline to order testing if it makes a written finding that it is not in the child's best interest, based on res judicata or equitable estoppel. If the court determines that the man is not the father, it must vacate the acknowledgment of paternity and provide a copy of its order to the birth record agency and the state's putative father registry. If the mother is receiving services from the IVD agency, that agency must also receive a copy of the order.

Lidia Sykisz, Esq. is a New York Divorce Lawyer at Storobin & Spodek LLP law firm. Contact her if you are looking for a Divorce Attorney in New York.