Heidi E. Opinsky

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Paternity and Child Custody (Podcast) 

In this podcast, Heid Opinsky talks with John Maher about paternity tests. She explains how paternity can affect child custody and support cases. Then, she provides several real life examples of cases where paternity was called into question.

John Maher: Hi, I’m John Maher. I’m here today with Heidi Opinsky. Heidi is a divorce and child custody lawyer in Connecticut and New York with over 30 years of legal experience in mediation, collaborative law and litigation. And she represents clients in a full spectrum of family law needs. Today, we’re talking about paternity and child custody. Welcome Heidi.

Heidi Opinsky: Good afternoon, John.

When Does Paternity Get Called Into Question?

John: Yeah. So Heidi, in what situations might paternity be called into question?

Heidi: So paternity is called into question when a child is born out of wedlock most often. And if you do have children, you’ll recall that at the hospital you get a birth certificate, and the birth certificate is a birth certificate with the name of the parents, and acknowledgement of paternity that gets put into play immediately.

And as a parent, you’re not even thinking about it at the time. You have a very short window of time to challenge paternity and no one thinks about it as they’re walking out of the hospital with their bundle of joy.

They’re not thinking that, “Oh, I have 45 days where I have to go back in and challenge this. I’m not going to bring it up at the birth. There’s too many relatives around. Everyone’s happy, but I’ll challenge it afterwards.” No one’s thinking about that. No one’s thinking about the statutorily prescribed time when you have to go in and challenge the birth certificate and acknowledgement of paternity.

Can You Challenge Paternity After You Sign the Birth Certificate?

John: And you can challenge that even after you’ve signed the birth certificate?

Heidi: Yes you can. But it’s generally for like grounds of fraud, because naturally what the law tries to do and in providing for that very short, limited window of opportunity to challenge it, they don’t want to bastardize children. They want to have a presumption of paternity and that’s really what it is. So after the timeframe is gone, it’s presumed the child’s not going to be bastardized.

How Does Paternity Affect Child Custody and Visitation Rights?

John: Okay. What does paternity have to do with child custody and visitation rights, and how do those all tie together?

Heidi: So you only have rights to visitation or custody if you are the parent of a child, and you have obligations also to pay for that child, such as child support. So frequently these situations come into being when one parent is not necessarily the proven parent of the child. So maybe they’re not even on the birth certificate yet. Maybe there is no birth certificate with a parent on the certificate, maybe no one knows.

So they can’t put down the father and someone comes in, the child’s now seven years old and says, “You’re the father. I’m going to sue you for child support and custody and visitation.” Usually it’s the mother suing for child support and it’s usually the father suing for custody and visitation if you think about it. So what happens is if there’s no proven acknowledgement of paternity either by way of a test, a paternity test where you’re proven to be the parent or the birth certificate, which becomes an acknowledgement of paternity after the statutory time goes by where you can’t challenge anymore.

The courts, if you go into court, can award custody, visitation, and child support. So, for instance, I have a child now where it’s a paternity case and we just did testing. And the child’s seven years old, the father has been seeing the child for seven years, but he came in to see me, and he said, “It was a one night stand.” And I said, “Well, how do you know that you’re even the father of the child? And you’ve been visiting the child for seven years. Have you paid child support?” “No, it wasn’t an issue. She wasn’t asking. She came from a comfortable family. Now she’s suing me for child support.”

I said, “Well, did you sign the birth certificate and acknowledge paternity? And he said, “I don’t remember. I don’t even remember seeing it.” So we went into court and he’s well past the time of challenging the birth certificate and acknowledgement of paternity, but I brought it up with the court and I said, “There may be an issue of fraud here because the birth certificate, he was never shown the birth certificate. It was a one night stand. He’s just been acting like he’s the father of the child, and visiting the child, and doing what he thought was the right thing.”

But now he’s remarried and has a new wife, only wife is now saying, “How do you know this is your child? And we’re going to have to support the child until the child’s 21, 22.” And is questioning it. So he went into court and surprisingly the judge actually said, “Are you challenging this now?” And I said, “There may be an issue of fraud because he never saw the birth certificate, was never advised of any timeframe, et cetera.”

And the reason was because the mother sent the birth certificate back to her house, not to the father’s house. So he never even knew, never saw it, never knew the time frame, never knew anything, and it came into being. Now that being said, the mother claimed he lived with her for a year. So I said, “Are we talking about the same case? Because I have a guy that says it was a one night stand. You have a gal that says that he lived there for a year.”

I personally thought that that was back peddling and they were trying to cover up the fraud, to be honest with you. And interestingly, they never put the birth certificate into the court system. And the court asked for a copy when I got retained. Now most courts will not award child support or custody of visitation when there’s a question of paternity without having a test or without getting the birth certificate.

So very astutely the judge asked and said, “Do we have a copy of the birth certificate?” And the lawyer who was seeking support for the mother never had put it into the court system. So sure enough, within an hour after we were in court stating that we may be contesting paternity, we saw the birth certificate for the first time and the birth certificate had my client’s name on it. But he’s like, “I don’t remember signing it. I don’t remember seeing it.” And sure enough, the resident’s address for the birth certificate was the mother’s apartment where he never lived.

John: Okay.

Heidi: So interestingly, we just had a paternity test performed and he is the father. Thank God. And I said, “I pray you’re the father because if you’re not the father, then we’re going to have a problem.”

John: Right.

Heidi: And you’ve been there in the child’s life for seven years and the courts could very well say at that point, “We’re not going to harm the child and bastardize the child after seven years. You’ve acted as a parent and you acknowledged your paternity and visited with the child.”

John: Right. You’ve essentially acted as if you’re the parent all this time. Yeah.

What You Need to Use Court-Approved Paternity Labs

Heidi: Yes. So fortunately, he was a father. And I’ve actually had paternity cases where usually most paternity cases you want to make sure that you’re getting and going to a lab that is a court approved paternity lab, because they do certain things with these tests that you have the chain of custody, and it goes into the court system, and it’s readily approved.

If you’re going to a fly-by-night place, it’s not approved by a court, you’re wasting your time because they’re not going to accept it. So most of these paternity tests, they involve taking the child, the child’s getting swabbed, you’re getting swabbed. There’s photographs of the child. There’s photographs of the parent, the father, et cetera. And so there’s a lot of times when I’ve seen the photographs, I was like, “You didn’t need a paternity test. That kid is your kid,” but it’s like bookends. The father’s face is the face of the child. There’s no question.

John: Right, right. Yeah. And then there’s probably other times where you’re like, “That kid doesn’t look anything like you, like the chances seem low.”

Heidi: Yeah. Exactly, exactly.

John: Right, right.

How Reliable Are Paternity Tests?

Heidi: But the tests are pretty thorough and strong. You’re like X percentage, a millionth of a percent that you’re not the father kind of thing.

John: Right, right, right. Right. .001% chance that you’re not or something like that. Yeah.

Heidi: But this was an interesting case. I was actually wondering like, “This could be that you’re not. If it was a one night stand, think about it. How do you know who she was with?”

John: Right. She could have had several one night stand. Yeah. yeah.

Heidi: And I said to him also like, “Why didn’t you question this? The child’s now seven years old and it was a one night stand. Why are you bringing this up now through your new wife?”

John: Yeah.

Heidi: Like, “What were you thinking?”

John: Right.

Heidi: And his answer was, “Well, the whole family was there, and I was at the hospital, and I didn’t want to disrupt it.” So I’m like, “But you’re talking about a child’s life and your life. You should have disrupted it.”

John:     Yeah. At least find out for sure. Yeah, yeah.

Heidi: I mean, how can you be that cavalier or not thinking you’re affecting someone’s life?

What Can Happen When You’ve Been Acting as a Parent but the Paternity Test Shows That You’re Not?

John: Right, because what would happen then if you’ve been acting as if you’re the father for seven years and then you find out, oh, you’re actually not, then what do you do?

Heidi: Well, honestly, in that circumstance, I could see a court saying, “You are the father, we’re going to deem you the father.”

John: Because you’ve been acting like it all the time.

Heidi: It’s a presumption and it’s a presumption that’s very hard to overturn and there’s a reason for that because you don’t want to harm the child who has developed a relationship. You’ve acted like the father. If you didn’t want to be the father or question it, you should have questioned that at the beginning, not seven years later, right?

John: Right.

Heidi: So I was surprised by that. It actually surprised me that a very astute business man would’ve done that, but I could see how-

John: Yeah. You just kind of like roll along with it and people tend to be trusting if a girl you slept with comes and says, “Hey, by the way, I’m pregnant and you’re the father,” you probably believe that.

Heidi: I guess I’m a little more skeptical as a lawyer with experience in this area.

John: The first assumption might not be, “Well, prove it.” You might just say, “Oh geez, here we go. Whatever, screw it”

Heidi: I’m a lot more pessimistic and skeptical.

Benefits of Doing a Paternity Test

John: Right, right. In what situations could a paternity test either sort of benefit the mother of the child or maybe the father of the child? Are there other sort of examples that you can can think of where it might sort of be a benefit one way or the other to do a paternity test, and find out whether or not a father is actually the father of a child?

Heidi: I mean, like I said, it usually comes up under the scenarios of support, custody, and visitation. So it’s obviously benefiting the mother by obtaining support from the father. And it’s benefiting the child obviously who doesn’t have a voice in this, but they’re impacted by it. And for consistency and stability, obviously the statutes are written to protect a child.

So the courts are actually coming in as parents patria they say as someone to protect the child for their rights, entitlements because they don’t have their own voice typically. And they want to make sure that this child is being supported the way they should be supported, or under the law, or rights and entitlements of custody and visitation because custody and visitation isn’t deemed an obligation, child support is.

So support and child support is an obligation and a responsibility. Visitation and custody is deemed an entitlement and a right. So you could say, “All right, the courts can say you’re the proven father. You’re going to now be obligated for support under the statutes and in accordance with the law what you should be paying.” You can walk away from custody and visitation, and never see that child. You can be ordered to pay support and yet never see the child because someone can’t be compelled to visit with a child.

John: Right. Okay.

What Can Courts Require From Parents?

Heidi: Like I said, it’s deemed an entitlement and a right. So a court can’t force a parent to visit with a child. They can force a parent to pay for the child.

John: Right.

Heidi: So there’s benefits and pluses and minuses for both the recipient parent and the child obviously who has the benefits of a parent. They’re not parentless, they’re not bastardized.

Can Men Request a Paternity Test to Prove a Child Is Theirs If the Child Is Being Raised by Someone Else?

John: Are there cases that you’ve heard of where maybe a father says, “Hey, this girl that I was with is maybe married to somebody else or is with somebody else, and that person is acting as if they’re that child’s father, but I have a feeling I’m the father”? Can you sort of force a paternity test-

Heidi: Like almost like the flip side. Someone coming in and saying, “I’m the father, not the father who’s the real father because I know I had a relationship with her. It was all on the-“

John: Yeah, the timing is suspect. I think I’m the father.

Heidi: They were quiet about it or we had an affair or whatever, sure. And you can imagine that could break up a marriage.

John: Right. Yeah. And so in that case like maybe there’s somebody who’s looking for, like you said, the visitation rights. They want to have the right to be able to visit that child. And so they want to have this paternity test done to prove that they’re the father. Is that required if somebody came and said, “Hey, I want to get a paternity test.”? Is that like a requirement?

Heidi: The courts can’t rule. Before they do anything, they must order a paternity test to be done because otherwise they’re taking someone’s word for it. So at a minimum, you need to have the birth certificate or a paternity test if there’s any question. So if you’re married and you have the child, there’s a presumption you’re the child, but it’s also on the birth certificate. Even though you’re married, you get a birth certificate for your child.

But there’s a presumption that if you’re married that the child’s your child, but as in this day and age that doesn’t always happen. But as a judge, you’re not empowered to order support or to grant custody and visitation, unless you know that this child is the child of the parent that you’re talking about.

Can Judges Order Paternity Tests?

John: And so a judge could order a paternity test to be done?

Heidi: Happens all the time. So, for instance, I have a case right now that one child was born out of wedlock before they got married, they got married and then they had the second child. I didn’t even realize it when I was doing the papers for the divorce and did a complaint, et cetera. And all of a sudden when I looked at the timing of the date of the marriage and the birth of the child, I realized the first child was born out of wedlock.

Now my client was the father, there was no question and neither party was questioning it. But interestingly, when we went to court and we were entering into an agreement, the judge saw the dates and said, “Did you put a birth certificate in? I need to see a birth certificate for that child.”

John: Hmm.

Heidi: Yes.

Contact the Law Offices of Heidi E Opinsky, LLC to Learn More

John: All right, well, that’s really a great information. Heidi, thanks again for speaking with me today.

Heidi: Thank you.

John: And for more information, you can visit Heidi’s website at the-law-offices-of-heidi-e-opinsky.websitepro.hosting or call the Law Offices of Heidi E. Opinsky, LLC at 203-653-3542.