About Jay D. Raxenberg
Not just any divorce attorney. Learn what makes Jay D. Raxenberg Long Islands choice for Divorce Law.
DNA testing impacts fatherhood in a big way, the article noted that “Over the last decade, the number of paternity tests taken every year jumped 64 percent, to more than 400,000.” The article continued to explain that those statistics only counted for tests that are admissible in court and require an unbiased tester and a documented chain of possession from test site to lab. That large percent of paternity tests does not include the ones conducted by men who buy kits from the internet or at their local drug stores.
Under New York Law a child born during a marriage is legally deemed to be a child of the marriage, which means that regardless of who the biological parent is the Court’s presumption is that the child belongs to both the husband and the wife. However, if you are in a marriage and discover that you are not the biological father, custody can be challenged. If the biological father comes forward he would have to file an action and prove that he is the biological father before there is any action regarding custody. Generally the father can prove paternity by filing a petition to get a court order, which is usually done in Family Court. Then based on the in court DNA testing the court will declare who is the legal father.
Typically biological parents have priority when it comes to custody regardless of whom the child has been living with. However, New York’s statutory law on custody provides that there shall be no prima facie right to the custody of the child in either parent, but the court shall make every effort to determine what is in the best interest of the child and what will be best to promote the child’s happiness and welfare. (Domestic Relations Law, § 70).
Therefore, If extreme circumstances do exist someone who is not the biological father may still pursue visitation rights if a Court finds that it is in the best interest of the child to maintain a relationship with that individual. A New York court will look at a variety of factors in order to determine the best interest of the child. Some of these factors include existing custody agreement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child’s emotional and intellectual development and the wishes of the child. Eschbach v. Eschbach 56 N.Y.2d 167 (Court of Appeals 1982).
If you have any questions about establishing paternity, or if you are looking to seek custody of your child please call the Law Offices of Jay D. Raxenberg, he can help !