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Articles: Divorce and Matrimonial Law

Paternity in New York

By J. Douglas Barics
Revised August 2019

Paternity is the term by which a father is legally recognized to be the parent of his child, which results in him being given legally enforceable rights and responsibilities. Paternity may be established in one of four ways; by presumption, by an acknowledgment of paternity, by court order or by estoppel.

Most of paternity law was pertinent before the availability of DNA Testing, and when in question, DNA will resolve nearly all issues. However, paternity laws developed when different sex couples were the only recognized relationship, and the emergence of same sex couples has to an extent revived long dormant paternity laws to relevance again.

If the parties are married, New York presumes the husband of any children of the marriage. This presumption can be rebutted. It is unclear how this long held presumption will develop over time with same sex couples.

Paternity can be established by the proper execution of an acknowledgment of paternity. See Family Court Act Section 516.

1. Paternity Proceedings

A paternity proceeding is commenced in Family Court by the filing of a verified petition from the party seeking to establish paternity. If the woman is married, her husband must usually be named as a party to the proceeding.

Once the parties are in court, they have the option to consent to an order of paternity. Consenting to an order of paternity means that there is no question as to who is the father of the child, and that neither side is requesting blood or DNA tests. It is very difficult to overturn a consent order of paternity, so if there is any question of paternity, the order should not be entered on consent. Such an order may very well stand even if down the road it is found that the legal father is not the biological father.

If there is no consent order of paternity, the court will generally order blood or DNA tests. Once the results of the blood or DNA tests are know, the parties once again will generally have the option to consent to an order of paternity, or request a hearing.

If the case goes to a hearing, it is the party seeking to establish paternity to prove paternity by clear and convincing evidence. If, however, the probability of paternity in the blood or DNA tests is 95% or higher, New York law presumes the man is the father, and it is now his burden to overcome this presumption. At the end of the hearing, the court will consider all properly introduced evidence, and either issue an order of paternity or dismiss the paternity petition.

2. Probability of Paternity

Blood and DNA testing can exclude a man from being the father, but they cannot establish paternity by 100%. Blood and DNA testing involves a chemical analysis of matching proteins, and determining what the probability of paternity is based upon a statistical analysis of the number of matches. While 100% can never be reached, DNA tests can be accurate to a fraction of a percent.

Parties are not required to accept the results of the tests, and the party seeking to challenge blood or DNA testing can attack either the chain of custody of the samples, or the underlying mathematics of the statistical analysis. Such challenges are very difficult, and can be very expensive.

It is possible that a party in a paternity proceeding may be estopped (prevented) from denying paternity based upon that party's past actions or statements. For example, if the party has alleged paternity in some other court proceeding or document, that party may be prevented from denying paternity. Likewise, if a man has held himself out to be the father of a child, he may be estopped from denying paternity in court. Finally, the actions of a putative father can affect the statute of limitations for a paternity proceeding. Each case is fact sensitive, and must be analyzed on its own.

3. Statute of Limitations

The time to commence a paternity proceeding under Article 5 of the Family Court Act is any time during the pregnancy of the mother, or after the child is born, but not after twenty one years, unless paternity is somehow acknowledged by the father, or he paid support.

4. Estoppel

Estopped is an equitable remedy which says that if someone has held themselves out to be a parent of a child, that status cannot be challenged later on by that person or another as it would not be in the child's best interest. For same sex couples, expect this aspect of the law to develop over time.


About J. Douglas Barics
J. Douglas Barics is a family law attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.

For Additional Information
If you have any questions about this article, please contact J. Douglas Barics

Disclaimer: The article "Paternity in New York" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.