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With Father’s Day quickly approaching, it’s time to recognize and evaluate the rights of New York fathers. For some, fatherhood begins when a child is born during the marriage; for others, fatherhood is established when a child is born out of wedlock.
When a child is born during the marriage, but is not biologically related to the father, there is a legal presumption of paternity. This is especially true if the husband holds himself out to be the father. In other words, if the husband tells people he is the dad, if he provides financially for the child, if he loves the child as if he or she were his own, if the child calls the husband dad, etc., he is holding himself out as the father. Upon a showing of these factors, generally, New York Courts will equitably estopp the husband from denying paternity. This means that when husband and wife divorce, husband will be responsible for paying child support. The purpose of this “equitable estoppel” rule is to protect the child who has been raised to believe that a certain person is his or her father. After all, the court will always consider what is in the best interests of the child.
In Matter of Shondel J v. Mark D
., the family court found that appellant, Mark D. held himself out as the child’s father and behaved in every way as if he was, and that the child justifiably relied on his representations, accepting him as her father and treating him as such. Mark D. was estopped from denying paternity because the child justifiably relied on his representation of paternity, to her detriment. There was every reason to believe that the mother also thought appellant was the biological father. On appeal, the New York Court of Appeals stated, “[t]he potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given.”
If a child is conceived between an unwed couple, the man will not have any legal parenting rights or obligations unless and until he acknowledges that the child is his own. This recognition is most often established through DNA testing, or an Acknowledgment of Paternity, identifying the man as the biological father of the child and listing the biological father’s name the child’s birth certificate. Once an unwed father has acknowledged paternity, he is entitled to visitation and required to pay child support.
Ulster County Department of Social Services, on Behalf of Bridgett M., v. Wilbert D, held that “Any acknowledgment of paternity executed pursuant to section 111-k of the Social Services Law, section 516-a of the Family Court Act, and section 33 (5) of the Domestic Relations Law allows a putative father to voluntarily acknowledge his paternity, be registered with the State Putative Father Registry, and be responsible for support in order to avoid the more burdensome, time-consuming, and costly procedure involved in a petition for paternity and order of filiation.” Similarly, the court in the Matter of Linda I. V., v. Gil R. C. declared, that acknowledgment of paternity can be established through Public Health Law § 4135-b where immediately preceding or following the in-hospital birth of a child to an unmarried woman the person in charge of the hospital, or the designated representative of such person, shall provide to the mother and putative father the documents and written instructions for them to complete a notarized acknowledgment of paternity which if signed by the parties shall be filed with the registrar.
Don’t let another father’s day pass by…If you are a father looking to prevent your child’s mother from removing you from the child’s life or are interested in establishing paternity, an attorney can help! Contact Long Island Divorce Attorney Jay D. Raxenberg to schedule a complementary consultation
If you are a mother looking to obtain child support for your child or would like to estopp the child’s father from denying paternity, an experienced matrimonial lawyer can assist. Contact Long Island Divorce Attorney
Jay D. Raxenberg to schedule a complementary consultation.