I recently took over a child custody case shortly before trial in Family Court of an out of wedlock child and no acknowledgment of paternity. The prior attorney filed for custody on behalf of the client, but not for paternity. The mother and child had gone on vacation to another state but never returned and this was filed two months after they left New York State. The mother’s lawyer ignored the defect until she and the child were in the other state long enough so that the father could not re-file in New York State.
When a child is born out of wedlock, absent a notarized acknowledgement of paternity signed by both parents or a paternity order, the biological father is not the legal father even if his name is on the birth certificate in New York State. The birth mother is the legal mother without anything else. If a married mother gives birth to another man’s child during her marriage, the child is legally the husband’s child absent a court order to the contrary. Thus, you must file a paternity proceeding in Family Court to be declared the legal father of the child born out of wedlock if no acknowledgment of paternity was signed.
In the case above, his prior attorney informed him that based on “equitable estoppel” he cannot be denied fatherhood. But this is pled in a paternity proceeding (“P” Docket), not a custody proceeding (“V” Docket). Equitable estoppel is when the child knows a man as his father and the father holds the child out as his child, and this has gone on for a period of time where it would be harmful to the child to bastardize and lose the child father relationship that was established.
In the case above, the judge looked at me and said: “There is a problem, there is no ‘P’ (meaning a P Docket) in front of me.” I retorted: “Well, I could put ‘P’ in of front of you, but then I would end up in handcuffs and in the holding cell.” Everyone including the judge laughed. Luckily, I was able to save the day and have a paternity docket opened that day, a consent paternity order entered and a fair and reasonable settlement of the custody/visitation proceeding.
The moral of the story is: if you skip a step, it could be fatal to your case and your life.