A biological father is not the same thing as a legal father. When a child is born outside of marriage, the biological father has no legal rights or responsibilities to the child until he is established as the legal father.

This is known as establishing paternity.

Whether you are the biological father, adoptive father, or otherwise expect to fill the role of the legal father, it is important to establish paternity now even if you believe your relationship with the mother is unwavering. Regardless of your plans, or the state of your relationship with the mother or child, you will not have the right to see your child without establishing paternity.

If you have or are expecting a child and you are not married to the other biological parent, you should consult an experienced family law attorney to ensure your rights to your child are protected now and for the future.

Establishing Paternity in New York

Establishing paternity is more than just identifying a father. It is about establishing parental rights. Unmarried parents must establish paternity not only to protect their own rights as parents but to ensure the child can benefit from both parents. When there is no legal father, the mother is the child’s only legal support. Financial support, medical and life insurance, and even important family medical history is only accessible through the mother.

While it should be a priority anytime a child is born to parents who are not married, paternity matters often come up when a relationship is not going well. When the parents decide to part ways, it is common for a once amicable co-parenting relationship to turn into a battle. In these situations, one or both parents may seek to establish paternity to recover child support, obtain custody, or manage conflicts with visitation or other parental rights and responsibilities.

In cordial situations, paternity can be established simply by completing the Acknowledgement of Paternity form and having it properly filed with the court. However, paternity issues often arise out of broken relationships or conflicts, and in the absence of an agreement, the court must be petitioned to establish paternity. Typically, paternity is established through the court based in part on a DNA test.

After a DNA test identifies a positive match, the court will issue an Order of Filiation naming the biological father as the legal father if the parents agree to the results of the DNA test. However, if either parent disputes the results, there will be a hearing in which the court will consider the DNA test and establish paternity.

Rights of the Biological Father

Unless you are married to the mother at the time of your child’s birth, your role as the child’s father could be questioned at any time.  When a child is born within a marriage, there is a legal presumption that both spouses are the natural parents. Unfortunately, this presumption does not exist for a child born outside of a marriage, regardless of the relationship or support the father provides for the child.

Establishing paternity means naming a legal father. This means much more than simply putting his name on the child’s birth certificate. Establishing paternity establishes parental rights until the child reaches the age of twenty-one. The legal father has a right to seek custody of the child or petition the court for visitation. It ensures the child cannot be adopted by someone else without the legal father being informed and giving his consent. It also gives the father a say in the child’s medical treatment, education, and other significant aspects of the child’s life.

Therefore, it is important to take the necessary legal action to establish paternity early to avoid any potential problems later. Our attorneys will exhaust all available options to ensure your rights as the child’s father are legal and protected.       

Prenatal and Postnatal Testing Options

Courts often rely on a DNA match between the putative father and child to establish paternity. The DNA for this test can be collected before birth or after. DNA testing can be costly, ranging from approximately $400 to $2,000. Postnatal testing is usually preferable because it is less expensive and less invasive. For postnatal DNA tests, the child’s saliva, blood, or even a sample from the umbilical cord can be used to match the father’s DNA.

Prenatal testing can be a costly option that often requires medical supervision. There are three types of prenatal testing: amniocentesis, Chorionic Villus Sampling (CVS), and SNP Microarray. Amniocentesis and CVS testing are both invasive, requiring a needle through the abdomen to remove amniotic fluid or through the cervix to collect chorionic villi. Though more accurate than less invasive options, these tests can put the mother at risk for complications, including miscarriage. Therefore, physician consent is often a requirement.

Unlike other prenatal testing options, the SNP Microarray collects a DNA sample from the mother’s blood. This test is not as accurate as the more invasive options, but still admissible in court to establish paternity.

Mother’s Rights in Paternity Actions

Mothers who were not married when they gave birth automatically have full legal and physical custody of the child unless there is a valid court order that states otherwise. The mother has the right to make all decisions related to the child, from selecting a pediatrician to enrolling the child in daycare, and everything in between. However, if the mother wants to receive child support or otherwise have the biological father involved, paternity must be established first.

DNA tests are usually necessary to establish paternity absent an agreement of the parents. New York law requires parental consent before testing children. If the putative father is named on the child’s birth certificate, then technically he can consent for the child to be tested. However, it is usually the mother who needs to consent. Likewise, the mother must consent to her own testing. If paternity needs to be established, the mother can decide whether the child is tested in utero or after birth.

Contact A Manhattan Paternity Attorney

If you have questions about paternity and your rights as a father, contact the New York family law firm of WertheimerLipton today to schedule a free consultation.