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Paternity Laws

Westchester county custody attorney

Law Pertaining to New York's Paternity proceedings

Family Court Act: Article Four Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests

(a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto. Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act.

(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party.

(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay.

CREDIT(S)

(L.1962, c. 686; amended L.1981, c. 9, 1; L.1982, c. 695, 1; L.1982, c. 773, 1; L.1983, c. 311, 2; L.1984, c. 792, 1; L.1990, c. 818, 12; L.1994, c. 170, 352; L.1997, c. 398, 79, eff. Nov. 11, 1997; L.1998, c. 214, 44, eff. July 7, 1998.)

HISTORICAL AND STATUTORY NOTES

2008 Main Volume

L.1998, c. 214 legislation

Subd. (a). L.1998, c. 214, 44, deleted the fifth sentence, which read, "Except in cases where exclusion has been established by another genetic marker or DNA test, the laboratory and statistical results of the human leucocyte blood tissue test (either separately or in combination with the laboratory and statistical results of any other genetic marker test or tests including, without limitation, red blood cell antigens, red blood cell serum protein, and red blood cell enzyme tests) may be received in evidence to aid in the determination of whether the alleged father is or is not the father of the child."

L.1997, c. 398 legislation

L.1997, c. 398, 1, 147, 148, and 149, describe the legislative findings and declaration, regulatory authority, severability provisions, and the effective date of L.1997, c. 398. See the Historical and Statutory Notes under Labor Law 537.

L.1994, c. 170 legislation

Amendments by L.1994, c. 170, eff. June 15, 1994, provided that nothing contained therein shall affect the application, qualification, expiration or repeal of any provisions amended by 350 to 379 of L.1994, c. 170 [amending CPLR 4518, EPTL 4-1.2, Family Court Act 418, 519-a, 532, Public Health Law 4135-b, Social Services Law 111-k, CPLR 5242, Domestic Relations Law 236, 240, Family Court Act 440, Social Services Law 111-b, Family Court Act 413, 416, CPLR 5241, Social Services Law 267-a, 367-a, and Insurance Law 2608-a, 1109; respectively], and that such provisions shall be applied or qualified or shall expire or be deemed repealed in the same manner, to the same extent and on the same date as the case may be as otherwise provided by law, pursuant to L.1994, c. 170, 564(43), set out as a note under Tax Law 601.

L.1990, c. 818 legislation

Amendment by L.1990, c. 818, eff. July 25, 1990, and applicable to pending petitions, motions and applications for child support, pursuant to L.1990, c. 818, 23, set out as a note under CPLR 5241.

Derivation

Ch.Ct.A. 24, formerly 23, added L.1922, c. 547; amended L.1925, c. 227; L.1926, c. 817; renumbered 24 and amended L.1930, c. 393; L.1954, c. 575; L.1955, c. 254; L.1961, c. 954.

Ch.Ct.A. 30-a, subd. 17, added L.1942, c. 810.

Dom.Rel.Ct.A. 34, added L.1942, c. 810; amended L.1945, c. 849.

Dom.Rel.Ct.A. 85, added L.1933, c. 482; amended L.1936, c. 346; L.1941, c. 943; L.1942, c. 761; L.1945, c. 780; L.1961, c. 953.

Dom.Rel.Ct.A. 92, subd. 18, added L.1933, c. 482.

Support Magistrate Jurisdiction: Effective June 2005

Section 439(a) expressly delineates the boundaries of a Support Magistrate's power over paternity matters. Support Magistrates, while empowered to hear and determine child support cases in which the parents are the contestants they are NOT authorized to hear and determine Article 5 paternity cases in which equitable estoppel is at issue. Quite a comprehensive list. Now for the exclusions. Support magistrates are not empowered to hear or determine:

"Issues of contested paternity involving equitable estoppel ..." [subdivision (a)]. Equitable estoppel may be originated by F.Ct Act Article 5 case [Section 532], or an Article 4 case Section 418]. In such event, the proceeding must be transferred to a judge for determination (see the commentaries following Sections 418 and 532 for a discussion of the procedures). Similar equitable arguments, such as collateral estoppel, presumably need not be referred to a judge pursuant to Section 439, although the better practice is to refer any issue involving an equitable remedy. Support magistrates are authorized to determine support, but lack jurisdiction to hear or determine child custody or visitation.

If the judge determines that equitable estoppel should not be applied, the case is thereupon referred back to the magistrate for a determination of support. Subsequently, the case may again be brought before the judge (or a different judge) upon objections. Further, many cases involve custody or visitation and child support. The case must therefore be judicially bifurcated; child custody is determined by a judge or a referee, while support is determined by a magistrate (and of course a permanent support order cannot be made until custody has been determined). At the least, coordination by the Court, the support magistrate, and counsel is frustratingly difficult to achieve. At worst, a case which the parties understandably perceive as one unified

Support magistrates shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five, five-A, and five-B and sections two hundred thirty-four and two hundred thirty-five of this act, and objections raised pursuant to section five thousand two hundred forty-one of the civil practice law and rules. Support magistrates shall not be empowered to hear, determine and grant any relief with respect to issues specified in subdivision five of section four hundred fifty-four or section four hundred fifty-five of this act, issues of contested paternity involving claims of equitable estoppel, custody, visitation including visitation as a defense, and orders of protection or exclusive possession of the home, which shall be referred to a judge as provided in subdivision (b) or (c) of this section. Where an order of filiation is issued by a judge in a paternity proceeding and child support is in issue, the judge, or support magistrate upon referral from the judge, shall be authorized to immediately make a temporary or final order of support, as applicable.

A support magistrate shall have the authority to hear and decide motions and issue summonses and subpoenas to produce persons pursuant to section one hundred fifty-three of this act, hear and decide proceedings and issue any order authorized by subdivision (g) of section five thousand two hundred forty-one of the civil practice law and rules, issue subpoenas to produce prisoners pursuant to section two thousand three hundred two of the civil practice law and rules and make a determination that any person before the support magistrate is in violation of an order of the court as authorized by section one hundred fifty-six of this act subject to confirmation by a judge of the court who shall impose any punishment for such violation as provided by law. A determination by a support magistrate that a person is in willful violation of an order under subdivision three of section four hundred fifty-four of this article and that recommends commitment shall be transmitted to the parties, accompanied by findings of fact, but the determination shall have no force and effect until confirmed by a judge of the court.

Change in law Effective June 30, 2011:

Except as hereinafter provided, support magistrates shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five, five-A, and five-B and sections two hundred thirty-four and two hundred thirty-five of this act, and objections raised pursuant to section five thousand two hundred forty-one of the civil practice law and rules. Support magistrates shall not be empowered to hear, determine and grant any relief with respect to issues specified in section four hundred fifty-five of this act, issues of contested paternity involving claims of equitable estoppel, custody, visitation including visitation as a defense, and orders of protection or exclusive possession of the home, which shall be referred to a judge as provided in subdivision (b) or (c) of this section. Where an order of filiation is issued by a judge in a paternity proceeding and child support is in issue, the judge, or support magistrate upon referral from the judge, shall be authorized to immediately make a temporary or final order of support, as applicable. A support magistrate shall have the authority to hear and decide motions and issue summonses and subpoenas to produce persons pursuant to section one hundred fifty-three of this act, hear and decide proceedings and issue any order authorized by subdivision (g) of section five thousand two hundred forty-one of the civil practice law and rules, issue subpoenas to produce prisoners pursuant to section two thousand three hundred two of the civil practice law and rules and make a determination that any person before the support magistrate is in violation of an order of the court as authorized by section one hundred fifty-six of this act subject to confirmation by a judge of the court who shall impose any punishment for such violation as provided by law. A determination by a support magistrate that a person is in willful violation of an order under subdivision three of section four hundred fifty-four of this article and that recommends commitment shall be transmitted to the parties, accompanied by findings of fact, but the determination shall have no force and effect until confirmed by a judge of the court.

In a proceeding to establish paternity heard by a support magistrate, the support magistrate shall advise the mother and potential father of the right to be represented by counsel and shall advise the mother and father of their right to blood grouping or other genetic marker or DNA tests in accordance with section five hundred thirty-two of this act. The support magistrate shall order that such tests be conducted in accordance with section five hundred thirty-two of this act. The support magistrate shall be empowered to hear and determine all matters, provided, however, that where the respondent denies paternity then paternity is contested on grounds of equitable estoppel, the support magistrate shall not be hear or determine issue of paternity, but shall transfer the proceeding to a judge of the court for a determination of the issue of paternity. Where an order of is issued by a judge in a paternity proceeding and child support is in issue, the judge, , shall be authorized to immediately make a l order of support. When an order of paretnhood (filiation) is made by a support magistrate, the support magistrate must make an award of child support.

"The support magistrate, in any proceeding in which issues specified in section four hundred fifty-five of this act, or issues of custody, visitation, including visitation as a defense, orders of protection or exclusive possession of the home are present or in which paternity is contested on the grounds of equitable estoppel, shall make a temporary order of support and refer the proceeding to a judge. Upon determination of such issue by a judge, the judge may make a final determination of the issue of support, or immediately refer the proceeding to a support magistrate for further proceedings regarding child support or other matters within the authority of the support magistrate."

"...Rules of evidence shall be applicable in proceedings before a support magistrate. A support magistrate shall have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure as will expedite the disposition of issues. The assignment of proceedings and matters to support magistrates, the conduct of the trial before a support magistrate, the contents and filing of a support magistrate's findings of fact and decision and all matters incidental to proceedings before support magistrates shall be in accordance with rules provided for by the chief administrator of the courts. Proceedings held before a support magistrate may be recorded mechanically as provided by the chief administrator of the courts. A transcript of such proceeding may be made available in accordance with the rules of the chief administrator of the courts. (The determination of a support magistrate shall include findings of fact and, except with respect to a determination of a willful violation of an order under subdivision three of section four hundred fifty-four of this article where commitment is recommended as provided in subdivision (a) of this section, a final order which shall be entered and transmitted to the parties. Specific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties. A party filing objections shall serve a copy of such objections upon the opposing party, who shall have thirteen days from such service to serve and file a written rebuttal to such objections. Proof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal. Within fifteen days after the rebuttal is filed, or the time to file such rebuttal has expired, whichever is applicable, the judge, based upon a review of the objections and the rebuttal, if any, shall (i) remand one or more issues of fact to the support magistrate, (ii) make, with or without holding a new hearing, his or her own findings of fact and order, or (iii) deny the objections. Pending review of the objections and the rebuttal, if any, the order of the support magistrate shall be in full force and effect and no stay of such order shall be granted. In the event a new order is issued, payments made by the respondent in excess of the new order shall be applied as a credit to future support obligations. The final order of a support magistrate, after objections and the rebuttal, if any, have been reviewed by a judge, may be appealed pursuant to article eleven of this act."

HISTORY

"Support magistrates shall not be empowered to hear, determine and grant any relief with respect to issues specified in subdivision five of section four hundred fifty-four or section four hundred fifty-five of this act, issues of contested paternity, custody, visitation including visitation as a defense, and orders of protection or exclusive possession of the home, which shall be referred to a judge as provided in subdivision (b) or (c) of this section. A support magistrate shall have the authority to make a determination that any person before the support magistrate is in violation of an order of the court as authorized by section one hundred fifty-six of this act subject to confirmation by a judge of the court who shall impose any punishment for such violation as provided by law."

L.2004, c. 336, 2, rewrote subd. (a) as amended by L.2003, c. 81, 9, which had read:

"Support magistrates shall not be empowered to hear, determine and grant any relief with respect to issues specified in section four hundred fifty-five of this act, issues of contested paternity, custody, visitation including visitation as a defense, and orders of protection or exclusive possession of the home, which shall be referred to a judge as provided in subdivision (b) or (c) of this section. In any proceeding to establish paternity which is heard by a support magistrate, the support magistrate shall advise the mother and putative father of the right to be represented by counsel and shall advise the mother and putative father of their right to blood grouping tests in accordance with section five hundred thirty-two of this act. The support magistrate shall order that blood grouping tests be conducted, including blood genetic-marker tests, in accordance with section five hundred thirty-two of this act. The support magistrate shall be empowered to hear and determine all matters related to the proceeding including the making of an order of filiation pursuant to section five hundred forty-two of this act based upon the admission of the respondent to the petition or based upon a written acknowledgement of paternity by the respondent in accordance with the provisions of section five hundred sixteen-a of this act, provided however, that where the respondent denies paternity, the respondent defaults in appearing before a support magistrate after the court has obtained jurisdiction over the respondent or the acknowledgement of paternity is disputed, the support magistrate shall not be empowered to determine the issue of paternity, but shall transfer the proceeding to a judge of the court for a determination upon the issue of paternity."