New York Family Law Blog
In this case,a New York Family Lawyer said the Defendant moved for an order: (1) modifying the Judgment of Divorce to remove any reference to the Plaintiff’s Child as his child; (2) removing any and all obligations of defendant to pay child support for Plaintiff’s Child; (3) directing the Office of Child Support Enforcement to stop any action to enforce payment of child support arrears of the defendant for Plaintiff’s Child; (4) requiring Plaintiff to repay all past child support payments made by defendant; and (5) requiring Plaintiff to pay attorneys’ fees, costs and disbursements for this action.
Based on the records of the case, plaintiff and defendant were married on April 15, 2002 but only began to live together in February 2003. The Child was born on November 15, 2002. On June 2, 2003, the Family Court ordered defendant to pay $ 44 per week for child support. The Plaintiff commenced a divorce action on January 26, 2004 based on cruel and inhuman treatment. By judgment dated August 30, 2004, the Supreme Court granted the Plaintiff a divorce on defendant’s default, and incorporated the terms of the Family Court child support order.
Thereafter, a New York Custody Lawyer said the defendant filed a summons and petition for visitation in Family Court. As the visitation case was proceeding, defendant began to question whether he was the biological father of the Child. On February 10, 2005, defendant took the Child for a DNA test, which excluded the defendant as the biological father of the Child. Since February 2005, neither defendant not his family has had any communication with the Child.
The defendant argued that the DNA test constitutes new evidence that warrants modifying the judgment to delete the provisions relating to the Child under CPLR 5015(a)(2). A Bronx Family Lawyer said it is a well settled doctrine that if the Child was born during the marriage, there is a rebuttable presumption that defendant is the Child’s biological father, which can only be overcome “by clear and convincing evidence excluding the husband as the father”.
In the case at hand, the court held that the DNA test constitutes sufficient evidence to overcome the presumption, and that the judgment should be modified pursuant to CPLR 5015(1)(2).
A Bronx Custody Lawyer said jurisprudence dictates that even upon a showing that he is not the biological father, a father could be equitably estopped from denying paternity upon a showing that it is in the child’s best interests.
In this case, however, Plaintiff has not made any showing that it would be in the Child’s best interests for the defendant to be estopped from denying paternity. Moreover, in light of the Plaintiff’s failure to appear, the Court accepted as true the defendant’s claim that his ties with the Child are not significant, and thus that the Child would not be harmed by his denial of paternity. Thus, the Court granted that portion of the motion seeking to modify the Judgment of Divorce by deleting the provisions regarding the Child, and relieving the defendant of any obligation for child support, retroactive to January 17, 2007, the date of service of this motion.
Defendant has also requested that he be relieved of any obligation for child support arrears. However, the Court only has authority to relieve defendant of child support obligations from the date of service of this motion. Similarly, the Court denied defendant’s request for repayment of child support payments already made. Finally, the Court denied defendant’s application for attorneys’ fees since it is not supported by proper papers.
Accordingly, the court modified the Judgment of Divorce by providing that there were no children of the marriage, and deleting the provisions stating that Plaintiff’s Child is defendant’s Child.
The court also modified the Judgment of Divorce by deleting any provision obligating defendant to pay child support for the Child; and it is further
The court also ordered the Office of Child Support Enforcement to stop any action to enforce payment of child support for the Child prospectively; and to stop any action to enforce payment of child support arrears for the Child which accrued after January 17, 2007, the date of service of defendant’s application/motion.
Our New York Divorce Lawyers from Stephen Bilkis and Associates are willing to assist you in enforcing a claim in favor of a child. It has offices within New York Metropolitan area, including Corona, New York.