According to the 2007 New York Family Court Act, paternity proceedings may be started at any time from pregnancy until a child is 21 years of age. If a motion is made by either party to perform a DNA comparison, the court may order the genetic testing unless the test is not in the best interest of the child. If testing is not within the best interest of the child, the court must provide in writing whether it is due to “equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata, which means the issue has been judicially determined.”
According to the 2007 New York Family Court Act, paternity proceedings may be started at any time from pregnancy until a child is 21 years of age. If a motion is made by either party to perform a DNA comparison, the court may order the genetic testing unless the test is not in the best interest of the child. If testing is not within the best interest of the child, the court must provide in writing whether it is due to “equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata, which means the issue has been judicially determined.”
Equitable estoppel will be applied when it is in the best interest of the child because, without it, would result in fraud or injustice. Ordinarily this occurs when an individual has assumed himself to be the father of a child due to providing support or close parenting. According to the New York Court of Appeals, equitable estoppel may be invoked to “protect a recognized father and child relationship.” According to Matter of Shondel v. Mark D., if an individual is in doubt about whether or not he is the father of a child, he must request a DNA test prior to assuming the role of father. Otherwise, a person who assumes the role of father, but is still in doubt about whether or not they are in fact the biological father, may be precluded from having a DNA test, due to it not being in the best interest of the child. It does not matter whether or not the alleged father reasonably relied on a false representation of fact. It matters whether the child relies on the representation in determining whether estoppel will apply.
For estoppel to apply, an individual must provide clear and convincing evidence as to the elements in order for the doctrine to apply. In determining “best interest of a child,” factors such importance of knowing true identity of biological parent; trauma of the test on the child; and the effect of child’s relationship with the father if the test is not allowed, may be examined. An important point to add is that estoppel applies to both women and men, which is demonstrated in Matter of Shondel v. Mark D. For example, it may prevent a woman from asking her partner to succumb to a DNA test after the woman allowed him to establish a father and child relationship.
In addition, establishing paternity may affect matters, such as custody, visitation, child support or inheritance. It is important that you are aware of your parental rights, when it comes to you and your children. If you have questions regarding paternity or are seeking custody or visitation of your child, contact the Suffolk County family law attorneys of Mcguire & Peláez, PC. Ms. Peláez has practiced daily in the family court for more than 10 years as private and Court appointed counsel, and she will zealously fight for your rights as a parent. Contact our Long Island family law firm at (631) 348-1702.
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