We have found that in at least 50% of the cases where a male client is certain that the child at issue is his, the DNA test proves otherwise. This is vital information, whichever side of an action you are on. If you are the mother, you begin to lose your credibility with the Court if you swear someone is the father and they are not. If you are the father, it is vital because, whatever you may think, DNA testing is extremely important as you will be on a support obligation for decades to come, or the custody of the child. Be sure it is your child from the first day.
Even after testing is done, there are challenges to be made to the testing itself. Again, important for both sides to be aware of and prepared for.
Also worthy of note is that a DNA test is a constitutionally protected search and seizure, and there must be probable cause for this test to be performed. Probable cause for this issue is clearly established in the case law, and your attorney should be fully aware of it, including the legal length of gestation, and how that can vary.
This is also the time to determine whether there will be a fight for custody of the child, and to consider how successful you may be at that fight. Alternatively, this would be the appropriate time to see if an agreement can be reached to achieve the best results for the child. Please review the Custody and Visitation provision on this site to get a sense of what a Court would consider.
If you challenge paternity, you cannot get custody or visitation until it is established unless the mother of the child agrees, though you can look for both in your initial pleadings. New York allows us to plead in the alternative, which allows you to look for potentially conflicting relief at the same time.
Although it occasionally happens, it is rare that you will be allowed to challenge paternity years down the road. You will always be allowed to challenge it at the beginning. And from the mother’s standpoint, it is best to be forthright from the beginning, to retain your credibility with the Court. In addition, if the father can bring an action for paternity at any time if it has never been properly established.
Also from the mother’s standpoint, remember that when you establish paternity, you also establish someone who will have rights to custody and visitation with the child, as well as the child support obligation. So be prepared to start sharing your child with someone else. If this is not something you wish to do, then you may be the one that wishes to contest paternity if the putative father brings an action against you.
This is just a brief overview of certain aspects of paternity which you may find helpful for informational purposes only. It is not intended as legal advice and does not establish an attorney client relationship.
If you would like to discuss bringing or defending a paternity action, please contact Diana through our contact page.