Legal Question in Family Law in New York
Adjudication of Paternity, claiming paternity to a child within a marriage
We are now living in Japan. My girlfriend is seeking a divorce (in process). NY State laws will apply.
About 3 years ago, my girlfriend and I decided to have a baby (son 2 1/2) while she was still married to her husband. Before the birth, she decided that she was going to give her husband another chance. My son was born with the husband's name on the Birth certificate. They left without give me any notice as to where their whereabouts.
After almost 2 years of no contact, girlfriend and I reunited last March. She separated from her husband in the same month. Although I am not officially living with them, I have been since March a regular part of my son's life (cooking, cleaning, diapers,etc.)
There is no question that mt son is biologically mine. Girlfriend is willing to sign affidavit.
THE QUESTION
We want my status as legal father to be acknowledged. We understand that the husband is the ''presumed father''. What is the best way
1- to rebut that presumption of paternity
2- to adjudicate myself as the father.
A -Is it better for my girlfriend to file with her divorce proceedings?or B- For me to file a petition separate from the divorce? Is the Uniform Parentage Act taken into consideration?
2 Answers from Attorneys
Re: Adjudication of Paternity, claiming paternity to a child within a marriage
Your girlfriend should file a paternity petition in Family Court in NY State. The husband will be served with the papers and you will be served. You will undergo genetic testing and that should conclusively establish paternity. Does the husband know that you are the father? Will he contest?? Your girlfriend cannot establish your paternity in a divorce action between her and her husband in Supreme Court. This can only be done in Family Court.
Re: Adjudication of Paternity, claiming paternity to a child within a marriage
You need to file a paternity action. In that action you can be adjudicated the father. You can request a DNA test to prove you are the father. Odds are the presumed father will not contest, as it will be one less child he has to pay support for.
Your girlfriend should handle the divorce separately. It will make the court cases easier in the long run.
Best of luck!
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