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Father Can’t Deny Paternity When Suing For Visitation

Posted on October 31, 2019

This October, a dismissal of a case in Kings County was found to be an error of law. In the case of B.S v. S.A., 65 Misc. 3d 1213(A) (Fam. Ct. Kings Co. 2019), a mother, who was religiously but not civilly married to the alleged father, was told her petition for child support was being denied because paternity of her children was not established. Further, the mother was told that the paternity was not established because she did not have a marriage certificate to prove she was married at the time of the conception and birth of the children. Normally, marriage makes the husband the father of children produced during the marriage, according to the law. The mother could not prove the man was her husband thus he was not automatically her children’s father.

However, this was an error of law in two ways. First of all, New York State law deems children born of a ceremonial, or religious, marriage legitimate for support matters, regardless of the validity of the marriage. Thus, despite the parties not being civilly married, the children were still considered a product of the marriage making the husband the father of the children.

Separately, this was an error of law in another way. Prior to the first child support decision, the husband had filed for visitation with the children. In the petition for visitation, the man had to swear he was the father of the children. The support case was originally dismissed for failure to prove the man was the father, however the same man had already sworn in the same court he was the father! The father cannot go back on his word and say he is not the father when he has already sworn to the court he is.

The child support case was dismissed on the grounds that paternity was not established; however, paternity was legally established in two separate ways prior to the court. Thus, the court made a mistake on dismissing the mother’s support petition on the grounds that paternity was established.

Before filing anything in family court, be sure to contact an experienced New York City family law attorney. Call us today at (212) 349-1600 to schedule an appointment to speak with Vivien I. Stark, Esq.

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