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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27621
Experience:  Attorney with experience in family law.
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I am grandparent to children born to a married woman. One is

Customer Question

Customer: I am grandparent to children born to a married woman. One is approaching 5 the other 3. According to court they belong to the husband not my son. Is here a statue of imitation to my son being legal father if he does not do dna? Will we as grand parents have rights. Kids born in NY mother now lives in AL. Son still in NY. She is still married.
JA: Thanks. Can you give me any more details about your issue?
Customer: Mother lets us see kids based on how much financial support we give her. Her husband is in NY.
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Submitted: 11 months ago.
Category: Family Law
Expert:  Lucy, Esq. replied 11 months ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your son's situation.

Is your son named on the birth certificate for either child? Is there a court order that names him as the father, or is there a custody and support order in place? If so, when did that happen? Has he ever acknowledged paternity in writing?

Customer: replied 11 months ago.
Both carry his last name. No support order. She tried and judge dismissed in NY saying they were legally her husband's children. Husband did not show up. Not sure about birth certificate.
Customer: replied 11 months ago.
He did for the oldest because we had guardianship in LA for 2.5 years. There was no indication of husband on filings. Parents were in NY then.
Expert:  Lucy, Esq. replied 11 months ago.

Ok, thank you. Most likely, her husband's name is ***** ***** birth certificate if the judge dismissed the case. It's common for a husband's name to be on the certificate when a married woman has a child. If your son's name isn't on the birth certificate, then he'd need to file a case seeking to establish by clear and convincing evidence that he is the father, not the husband. That would require getting a DNA test. The time to establish paternity in New York is up until the child's 21st birthday.

If the woman and her husband eventually do divorce, then your son would have to seek to intervene in that case in order to avoid a situation where the husband is legally stated to be the father. But if he already established paternity for the older child, that cannot be undone unless he consents to have the husband adopt the child (and the husband wants to do so).

Your rights as grandparents, I'm sorry to say, are dependent on your husband's rights as the father. If he is not the legal father of the child, then you are not the legal grandparents and therefore have no right to the children other than what the parents choose to give you. And if he's choosing not to seek to be established as the father or to assert his legal rights, that's not something you can do on his behalf.