You are here: / / FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED BECAUSE...
, ,

FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED BECAUSE HIS PATERNITY HAD NOT BEEN ADJUDICATED AT THE TIME THE PETITION WAS BROUGHT; THE PETITION ADEQUATELY ALLEGED PATERNITY WHICH WAS SUBSEQUENTLY CONFIRMED BY A DNA TEST (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s custody petition should not have dismissed on the ground he had not been adjudicated the biological father at the time the custody petition was brought. The petition sufficiently alleged paternity, which was subsequently confirmed by a DNA test:

The Family Court, in effect, granted that branch of the petitioner’s cross-motion which was for a genetic marker test. The DNA test results of the court-ordered genetic marker test revealed that the probability of the petitioner’s paternity was 99.99%. Thereafter, the court issued an order of filiation, on consent, adjudging the petitioner to be the child’s biological father. However, in a separate order, the court, inter alia, granted that branch of the mother’s motion which was to dismiss the custody petition, determining that the petitioner lacked standing to file the custody petition because at the time he filed the custody petition, “his parentage of the child had not yet been legally established.” The petitioner appeals.

“Pursuant to Domestic Relations Law § 70, parents have standing to seek custody of or parental access with their children” .. . Here, the custody petition sufficiently alleged that the petitioner was the biological father of the child. The mother’s affidavits did not expressly deny the petitioner’s paternity, nor offer any facts to refute his allegations of paternity. Moreover, the Family Court entered the order of filiation on consent, and it is undisputed that the petitioner was adjudicated to be the child’s biological father before, or at the same time that, the court granted that branch of the mother’s motion which was to dismiss the custody petition. Accordingly, the court erred in determining that the petitioner did not have standing to file the custody petition because he had not been adjudicated the biological father of the child before the custody petition was filed … . Matter of Kevin C. v Trisha J., 2025 NY Slip Op 03324, Second Dept 6-4-25

Practice Point: Father’s standing to bring a custody petition is not dependent upon an adjudication of paternity.. Here the custody petition adequately alleged paternity, which was subsequently confirmed by a DNA test.

 

You might also like
DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE INTOXICATION DEFENSE IN THIS MURDER CASE; THE MANSLAUGHTER CHARGE MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF MURDER (SECOND DEPT).
HERE THE VICTIMLESS CRIME DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WITHIN THE MEANING OF THE “RAISE THE AGE” LEGISLATION; THE PEOPLE’S MOTION TO PREVENT THE REMOVAL OF THE ADOLESCENT OFFENDER’S CASE FROM THE YOUTH PART OF SUPREME COURT TO FAMILY COURT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
THE JUDGE SHOULD HAVE HELD A HEARING BEFORE GRANTING THE BANK’S MOTION FOR AN ALTERNATIVE METHOD OF SERVICE IN THIS FORECLOSURE ACTION; DEFENDANT AVERRED THE ADDRESS LISTED ON THE MORTGAGE WAS CORRECT (SECOND DEPT).
ABSENCE OF A COMMA, STANDING ALONE, WAS NOT ENOUGH TO DICTATE THE MEANING OF A CODE PROVISION.
Criteria for a Civil Contempt Finding
STATEMENT IN SUMMONS WITH NOTICE ABSOLUTELY PRIVILEGED.
FAMILY COURT IMPROPERLY DELEGATED TO FATHER THE COURT’S AUTHORITY TO DETERMINE MOTHER’S ACCESS TO THE CHILD (SECOND DEPT).
DEFENDANTS IN THIS SLIP AND FALL CASE DID NOT DEMONSTRATE WHEN THE AREA WAS LAST CLEANED OR INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF CLAIM... DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS CREDIT CARDS SEIZED...