Lawyers Manual - Unified Court System

110 Liberty Aldrich and Lauren Shapiro
Marriage: Children born to a marriage are presumed to be the children of
the marriage. 46 If your client is married to the child’s father, then he has an
equal right to custody of the child and no proof of paternity is required for him
to seek visitation or custody. A child’s birth father establishes paternity if he
marries the mother, even after the birth of the child. If your client was married
to someone other than the father at the time of the child’s birth, the husband at
the time of the birth is presumed to be the father of the child. Only a court order
can overcome this presumption. The husband would have the right to seek
custody, and the mother would have to prove he is not the father. The biological
father would have to file for and prove paternity.
Order of Filiation: Either parent can file a petition in court to determine
paternity. 47 A paternity petition can be filed in New York State if the mother,
child, or putative father resides here, even if the child was not born in New York
State. 48 Once paternity has been established, the court will enter an “order of
filiation.” If your client is or was ever on welfare, an order of filiation may have
been entered without your client’s knowledge because the Department of Social
Services establishes paternity when filing for child support on behalf of the
mother. Also, if your client is receiving child support pursuant to a court order,
paternity has probably been established.
Acknowledgment of Paternity: An Acknowledgment of Paternity is signed
in the hospital after the birth of a child and has the same force and effect as an
order of filiation. 49 Your client may not remember whether an acknowledgment
of paternity was signed. If the child was born after 1995, if the father was at the
hospital during or shortly after the birth, and if his name is on the birth
certificate, he probably signed an acknowledgment of paternity.
Paternity Has Been Established But There is No Court Order
Concerning Custody
Although courts often find that domestic violence is a legitimate reason for
taking children from the jurisdiction, domestic violence victims should be
cautious about leaving New York if paternity has been established even if there
is no custody or visitation order. The father could file a custody or visitation
petition in New York even after a victim leaves the jurisdiction, and if he files
within six months New York will almost certainly have home state jurisdiction.
If she leaves without the father’s consent and New York is the child’s home
state, the father may be able to obtain a writ of habeas corpus directing that she
return the child to New York immediately. He will have a strong case for a writ
if the parties were living together with the children prior to her departure or he
was regularly visiting with the child.