daddysla said:
NEW YORK
THANKS IN ADVANCE TO ANYONE TAKING THE TIME TO READ AND POTENTIALLY ADVISE WITH THE FOLLOWING, IT IS TRULY APPRECIATED!
Hi,
My daughter was born in 2003. Her Mom was married at the time (and still is) to a spouse who abandoned her and has been difficult to locate. We're not even sure he's still in the country. She has had issues with completing the divorce due to a combination of his absence and our lack of commitment to the finances involved with legal costs to rectify this. My main concern, however, is not the divorce but instead the paternity issue derived from the aforementioned situation (but any info on the cheapest fastest way to get this done is welcome!).
In NY (and perhaps in other states), if the mother is still legally married to someone else and has a child with someone other than the spouse, the birth certificate of the child either defaults to the spouse's name or remains blank. In our case, it is blank. My daughter does have my last name though. My goal is to correct the birth certificate to show my name. I did a petition of paternity back in 2003/2004 but the judge required that the absent spouse be present, so I was denied. As I mentioned, he is nowhere to be found. EDIT: I thought it may be important to mention that the mom and I have been living together since before the birth of our child and are currently still together with child. :END EDIT
So, my question is what should my approach be for my next petition of paternity (which I would like to initiate ASAP)? Should I use some sort of locator service (like a skip trace) to hopefully find and subpoena this guy? Or would a paternity/DNA test be sufficient?
PLEASE ADVISE!
You really need an attorney for this but you have several options.
Mom needs to obtain her divorce, there are ways to do that if the other party cannot be found but it takes an attorney.
Mom could appoint you a standby guardian.
You really need to at least get a private DNA test and be sure this is actually your child, the results of that test while not the same as a court ordered test could give your standing to petition the court for paternity, you understand you will then be responsible for child support until the child is 21, that is why you want the DNA test.
Mom could petition the court to terminate her husband's parental rights, then you could petition to establish paternity.
Grounds for Termination of Parental Rights New York
Statute: Soc. Serv. Law § 384-b
Circumstances That Are Grounds for Termination
Abandonment or Extreme Parental Disinterest
Abuse/Neglect
Mental Illness or Deficiency
Alcohol or Drug Induced Incapacity
Felony Conviction/Incarceration
Failure of Reasonable Efforts
Abuse/Neglect or Loss of Rights of Another Child
Failure to Maintain Contact
Failure to Provide Support
Child Judged in Need of Services/Dependent
Child's Best Interest
Child in care 15 of 22 months (or less)
Felony assault of child or sibling
Murder/Manslaughter of sibling child
Circumstances That Are Not Grounds for Termination
Sexual Abuse
Failure to Establish Paternity
N.Y. Soc. Serv. Law § 384-b (3)(l), (4), (5)(a), (6)(a)-(b), (7)(a)-(d) (West, WESTLAW through L. 2003)
Whenever the child shall have been in foster care for 15 months of the most recent 22 months; or a court of competent jurisdiction has determined the child to be an abandoned child; or the parent has been convicted of a crime as set forth below, the authorized agency having care of the child shall file a petition pursuant to this section unless based on a case by case determination:
The child is being cared for by a relative or relatives; or
The agency has documented in the most recent case plan a compelling reason for determining that the filing of a petition would not be in the best interest of the child; or
The agency has not provided to the parent or parents of the child such services as it deems necessary for the safe return of the child to the parent or parents, unless such services are not legally required.
For the purposes of this section, a compelling reason whereby a social services official is not required to file a petition for termination of parental rights may include, but is not limited to, where:
The child was placed into foster care and a review of the specific facts and circumstances of the child's placement demonstrates that the appropriate permanency goal for the child is either a return to his or her parent or guardian; or discharge to independent living;
The child has a permanency goal other than adoption;
The child is 14 years of age or older and will not consent to his or her adoption;
There are insufficient grounds for filing a petition to terminate parental rights; or
The child is the subject of a pending disposition.
For the purposes of this paragraph, a petition for the termination of parental rights shall be filed when:
The parent of such child has been convicted of murder in the first degree, murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree, and the victim was another child of the parent; provided that the parent must have acted voluntarily in committing such crime or has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child, another child of the parent or another child for whose care such parent is or has been legally responsible;
The parent of such child has been convicted of criminal solicitation, conspiracy, or criminal facilitation for conspiring, soliciting, of facilitating any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent or another child for whose care the parent is or has been legally responsible;
The parent of such child has been convicted of assault in the second degree, assault in the first degree, or aggravated assault upon a person less than 11 years old, or has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child, another child of the parent, or another child for whose care such parent is or has been legally responsible; or
The parent of such child has been convicted under the law of any other jurisdiction of an offense which includes all the essential elements of any crime specified in this subparagraph.
An order committing the guardianship and custody of a child pursuant to this section shall be granted only upon one or more of the following grounds:
Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or
The parent or parents, whose consent to the adoption of the child would otherwise be required, abandoned such child for the period of 6 months immediately prior to the date on which the petition is filed in the court; or
The parent or parents, whose consent to the adoption of the child would otherwise be required, are presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of 1 year immediately prior to the date on which the petition is filed in the court; or
The child is a permanently neglected child; or
The parent or parents, whose consent to the adoption of the child would otherwise be required, severely or repeatedly abused such child, and the child has been in the care of an authorized agency for the period of 1 year immediately prior to the initiation of the proceeding under this section.
For the purposes of this section, a child is 'abandoned' by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.
For the purposes of this section, 'permanently neglected child' shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than 1 year following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child. In the event that the parent defaults after due notice of a proceeding to determine such neglect, such physical and financial ability of such parent may be presumed by the court:
Evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact.
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