bigstock Mom and daughterA New York man sought a paternity test to possibly vacate the child’s paternity after learning that the child’s mother was still with her estranged husband at the time the child was conceived, as reported by the New York Law Journal in a September 12th, 2012 news article.

At the time of the child’s birth the man did not question that he was the child’s biological father. Now after learning that the mother was still married and was still intimately involved with the husband, the New York court found that the man had established through clear and convincing evidence that his paternity of the child was questionable.

The court stated in their reasoning that under New York law a child born during the course of a marriage is generally viewed as a product of the marriage. Due to the fact that the mother was still legally married, living in the same household, and was intimately involved the court found that the man  has met the burden of proof to a paternity test due to fraud or mistake. The court ordered for a DNA test to be conducted to establish the child’s father.

The court concluded that under the law if the child’s father was the man, then he would be found responsible for the child. However, if the man was shown to not be the biological father then all responsibilities would fall on the mother’s husband.

If you are seeking divorce or child custody it is advisable to retain the expertise of an experienced attorney. Jayson Lutzky has over 29 years of experience practicing law and understands the importance of understanding new legal developments. He offers free initial consultations—to set one up, please call his office at (800) 660-5299 or visit