If I go for divorce, what is the remedy available in New York to prove the paternity of the child?

Full question:

I am a resident of New York. My wife delivered a second child last month and I am suspicious about the paternity of the child. If I go for divorce, what is the remedy available in New York to prove the paternity of the child?

• Category: Paternity
• Date: 04/07/2025
• State: New York

Answer:

In New York, when an action for divorce is brought by the husband, the legitimacy of a child of the wife may be determined as one of the issues in the action for divorce. A child born during marriage is presumptively legitimate. When paternity is contested, the court shall order the mother, the child, and the alleged father to submit to one or more genetic marker or DNA marker tests. The provisions in this regard has been enumerated in NY CLS Dom Rel § 175 and NY CLS Family Ct Act § 418, which have been provided below:
NY CLS Dom Rel § 175 reads as follows: 
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2. Where the action for divorce is brought by the husband, the legitimacy of a child born or begotten before the commission of the offense charged is not affected by a judgment dissolving the marriage; but the legitimacy of any other child of the wife may be determined as one of the issues in the action. In the absence of proof to the contrary, the legitimacy of all the children begotten before the commencement of the action must be presumed.” 
NY CLS Family Ct Act § 418 reads as follows: 
“(a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. 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. The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto. Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act.
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