Can I vacate the acknowledgment of paternity after five years of signing it?
Full Question:
I had signed acknowledgment of paternity 5 years ago when my wife gave birth to a child. wife. After one month of the child’s birth, my wife informed me that I was not the biological father of the child. I was confused and depressed. But now I want to vacate the acknowledgment of paternity. Is it possible under New York law?
12/23/2016 |
Category: Paternity » Acknowledgment |
State: New York |
#28694
Answer:
(a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity.
(b) (i) <1>Where a signatory to an acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law had attained the age of eighteen at the time of execution of the acknowledgment, the signatory may <2> seek to rescind the acknowledgment by <3> filing <4> a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including, but not limited to, a proceeding to establish a support order) relating to the child in which <5> the signatory is a party. <6> For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. <7>
(ii) Where a signatory to an acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law had not attained the age of eighteen at the time of execution of the acknowledgment, the signatory may seek to rescind the acknowledgment by filing a petition with the court to vacate the acknowledgment anytime up to sixty days after the signatory's attaining the age of eighteen years or sixty days after the date on which the respondent is required to answer a petition (including, but not limited to, a petition to establish a support order) relating to the child in which the signatory is a party, whichever is earlier; provided, however, that the signatory must have been advised at such proceeding of his or her right to file a petition to vacate the acknowledgment within sixty days of the date of such proceeding.
(iii) Where a petition to vacate an acknowledgment of paternity has been filed in accordance with paragraph (i) or (ii) of this subdivision, the court shall order genetic marker tests or DNA tests for the determination of the child's paternity. 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. If the court determines, following the test, that the person who signed the acknowledgment is the father of the child, the court shall make a finding of paternity and enter an order of filiation. If the court determines that the person who signed the acknowledgment is not the father of the child, the acknowledgment shall be vacated.
(iv) After the expiration of <1> the time limits set forth in paragraphs (i) and (ii) of this subdivision, <2> any of the signatories to an acknowledgment of paternity may challenge the acknowledgment <3> in court by alleging and proving fraud, duress, or material mistake of fact. <4> If the petitioner proves to the court that the acknowledgment of paternity was signed under fraud, duress, or due to a material mistake of fact, the court shall then order genetic marker tests or DNA tests for the determination of the child's paternity. 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. If the court determines, following the test, that the person who signed the acknowledgment is the father of the child, the court shall make a finding of paternity and enter an order of filiation. If the court determines that the person who signed the acknowledgment is not the father of the child, the acknowledgment shall be vacated.
(v) If, at any time before or after a signatory has filed a petition to vacate an acknowledgment of paternity pursuant to this subdivision, the signatory dies or becomes mentally ill or cannot be found within the state, neither the proceeding nor the right to commence the proceeding shall abate but may be commenced or continued by any of the persons authorized by this article to commence a paternity proceeding.
(c) Neither <1> signatory's legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If the court vacates the acknowledgment of paternity, the court shall immediately provide a copy of the order to the registrar of the district in which the child's birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district that provides the mother with such services.
(d) A determination of paternity made by any other state, whether established through an administrative or judicial process or through an acknowledgment of paternity signed in accordance with that state's laws, must be accorded full faith and credit <1> pursuant to section 466(a)(11) of title IV-D of the social security act ( 42 U.S.C. § 666(a)(11)).
In Matter of S.E.R. v. M.S.C., the court found that the acknowledged father even upon learning within a few months after the child’s birth that he was not the biological father, he continued to live with the child for 10 years. Therefore, the court held that unless a prima facie showing of fraud, duress, or material mistake of fact is shown by the acknowledged father he cannot vacate the acknowledgment after the expiry of 60 days of signing acknowledgment. [1]
In this case, the acknowledged father was aware that the child was not born to him within one month of child’s birth and now 5 years have passed. So, to vacate the acknowledgment he has to show fraud, duress, or material mistake of fact as required under NY CLS Family Ct Act § 516-a(b)(iv) to challenge the acknowledgment.
[1] Matter of S.E.R. v. M.S.C., 18 Misc. 3d 249, 252 (N.Y. Fam. Ct. 2007),
