Endicott, NY asked in Child Custody and Family Law for New York

Q: Fighting for paternity. Mother of .my child had another man sign the birth certificate

She had another man who is in no way possible the father of my child sign the birth certificate. I've filed for custody but im not sure what to expect. She's also married to someone else.

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2 Lawyer Answers
Michael J Stachowski
Michael J Stachowski pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Divorce Lawyer
  • Buffalo, NY
  • Licensed in New York

A: With the facts as you state them, you need blood tests as a threshold . You must first prove you are the father. A DNA test of mother, father, and child will reveal positively your Paternity of the Child. Once the paternity is established you have standing to petition for Custody. You will have an uphill Battle but the DNA will get you paternity , then you can suggest to the court to get meaningful access and Joint Custody. Joint Custody as a start will give you co parenting rights an will be evidence of your care and concern. you can further ask for shared custody with each of you splitting time with the child and block time holidays and summer.Your desire to be in the life of your child is an excellent starting point.. Custody is evaluated through the "Best Interests Of The Child" You would be best to consult a Family Lawyer.

Peter Christopher Lomtevas
Peter Christopher Lomtevas pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Divorce Lawyer
  • Schenectady, NY
  • Licensed in New York

A: The use of the word "fight" is not correct; the proper word to use is "navigate" hostile waters that often sink a case in a whirlpool.

The asker must file a paternity petition in his county's family court (Broome County if the child is also residing in Endicott, New York). The respondents must be the mother and the man on the birth certificate.

There cannot be a paternity test unless and until the man listed on the birth certificate acknowledges that he is not the biological father. That is referred to as an "affidavit of unavailability" to have sired the child. When the man signs such an affidavit, then the court has the authority (referred to as "overcoming the threshold") to order a DNA test for the petitioning man.

Once those results come in and if they are a match, then the court can enter an order of filiation that will operate to vacate the name of that other man in favor of the petitioning man.

The steps are file, obtain the affidavit, the court will order, and the results will lead to success.

There is not enough information about the marital man. He will be of no effect on the proceedings if the child predated the marriage. Otherwise, the marital man must be included in the petition because if the child was born during the marriage, then the marital man is presumed to be the father of the child which stands in conflict with the man in the child's birth certificate which the family court judge must set straight. Today's interpersonal relationships are fraught with peril, and men and women cheat on each other as if it was a sport. Children pop up from these casual encounters, and family courts are highly limited in the statutory authority they have to disentangle all the convoluted DNA.

An attorney will likely charge many thousands of dollars to prosecute such a petition. Without an attorney, the results will be nil.

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