Establishing Paternity of a Deceased Father

[ksheja]

My question involves paternity law for the State of: New York/Georgia (interstate case)

I'm in NY and my son is 15. My son's father was living in NY (he was a Korean immigrant) in 1991-1994. I last saw him in the 7th month of pregnancy and he never established paternity. For a variety of reasons he was very difficult to locate. No SSN. Did not know relatives' names. He had a common name. I did know his birth date. I thought he went back to Korea. Child Support office did not find him. About 8 years ago a PI found someone of his name and birth date in Georgia. He sent me the address, not the SSN. I wrote a letter with pictures of my son to see. A woman called claiming to be his sister and said he was in Korea. From details of conversation I thought I had the wrong person completely.

This year a PI searched for him and found him in the Social Security Death Index (died 2009). I did extensive searching to see if he was the same person and because there were a lot of public records I was able to determine it was (I saw photos). The woman was not his sister, she was his wife. They may have a daughter together and he had a son in Korea was well from his 1st marriage.

I want to pursue a paternity case in order to obtain Social SEcurity benefits and also to learn his medical history and family medical history as there is a significant history of cancer. He died of it at 51 and his mother also died in middle age of cancer. About other relatives I don't know.

I have to do it pro se as I do not have $3000 - 5000 for a lawyer. I have done a lot of research and this type of case has been done. Most of the cases I found were in New York (e.g. Anne R. vs. Estate of Francis C, etcetera) because the law has been more restrictive there but is changing. (NY requires you to prove by DNA evidence as well as that the father "openly and notoriously claimed the child as his own." I do not think you have to prove the second part in every state, however. Just the DNA. Which can be obtained from samples from the deceased father if available or testing of his relatives such as other children. I am trying to find his other relatives, such as his brother and sister. I am trying to track them down through the address from his Social Security application from 1991.


My questions are:
1 -I need to find out if he had a will. I think not and I do not think he had much to leave. I think it if a person has a will it becomes public record after they die, is that correct? I also need to find out if the daughter is his daughter (and not the wife's 1st husband's) and I think that information would be on file in the court house in Georgia - because she filed for divorce once and that information should be on there. I can go there and look.

2 - where do I file? New York or Georgia? or either.. if I go to family court where I live will they file this? Child Support Unit will not file it unless I locate one of the father's siblings.
3 - can a court order genetic testing of other people (not a party to the case - such as relatives) ? I think I would need their cooperation.
4 - who would the papers be served to? His next-of-kin (wife), correct? Petitioner versus Estate of ____.

Thanks. This is complicated.

[Mr. Knowitall]

It's also possible that tissue samples were preserved by the clinic(s) where he was treated for cancer. If an autopsy was performed, the agency that performed the autopsy may also have retained blood or tissue samples.

If the will was probated it is part of the public record. If the will was not probated, or if he had no will, there would be no public record of the will. You should be able to examine court records at the courthouse.

Under the circumstances, you would likely benefit from researching which state has the most favorable laws in relation to establishing paternity after death and file in that state. Obviously it will be more difficult for you to file in a state in which you do not live, as you will have to travel to the other state for certain court proceedings.

You should not expect that the court will order third parties to submit to DNA testing against their wishes.

If you wish to bring a paternity action against a decedent, the action would normally be served upon their estate. If no estate was probated you will likely have to open an estate; if an estate was probated it is probably closed so you will likely have to petition to reopen the estate.

[ksheja]

Thanks..
I suspect there is not a will, but I am going to check at the courthouse. I don't mind going there to look at some records at the courthouse. There are a few other records I want to see that are there. I also would not mind going there for court proceedings.

I want to consult with some lawyers... though I'd have to save up some money before being able to hire one. Because this is complex. There are a few lawyers in New York who have said they could take this case... and also some lawyers in Georgia. I think definitely the GA law is more favorable. NY's law in these cases has been one of the most unfavorable because you have to have DNA evidence and evidence that the father "openly and notoriously claimed the child as his own". How openly and notoriously seems to be on a case-by-case basis, from the case law I have studied. There are quite a few cases like this to read about online because the New York law has been more restrictive than that of other states (although it is becoming more liberal). They used to interpret the statute "a genetic marker had been administered to the father" as meaning it had to be administered before his death because of the word "had" but that has changed. I can't see anything in the Georgia statute on inheritance by nonmarital children that they have to prove the father claimed them as their own. This would be difficult in my case as I have no evidence that he told anyone...one person I know he might have told (his cousin), I am trying to track down. This cousin saw me when I was 7 m. pregnant, though I was wearing loose clothes. He called me "sister-in-law." There are 4 or 5 years of his life between 1995-2000 that I have no record of (I last saw him in 1994 in NY).

I there any supplementary evidence that can be introduced to at least give the judge reason to believe there is a reasonable probability he is the father... before a DNA test... the father is no longer here to confirm my story. At that time in my life I kept a handwritten journal with many detailed pages of it about him and our relationship. (2-1/2 years' worth), my 2 pregnancies by him (1st one ended in miscarriage), quotes of things he said, including that he acknowledged (to me) that he was the father - he never questioned it, he gave me a Korean name to use as a middle name for the baby. It is obviously an old book, I wonder if it could be submitted as supplementary evidence. And I could get an affidavit of some relatives of mine who knew about the relationship. The paternity form also asks a question "does the child resemble the father" and you can submit photos. Since my son is 15 I think you can see a resemblance better to a 34-year-old man than just baby pictures.

I am trying to track down his relatives (of which I can find no sign of in Georgia on the public records - I can only find his wife's sisters, her son, her ex-husband) through the address on his original application for the Social Security card, which he made before I met him. The people whose address and phone # are on the application are still there, they own the building and run a church in it. The lady has written books. I am going to write to her and see if she remembers him or knew his relatives. I could find no sign of an on-line obituary that might have named his relatives. I found an old address of his through looking up an old phone # on Veromi which used to belong to someone who was probably his roommate.. .unfortunately, another really common Korean name and no further addresses for him.

I have no idea if he ever saw the letter or pictures that I sent to Georgia years ago, or just his wife. Only she knows the answer to that.

If I had a lawyer, they would do something called "discovery?" Would that include finding out if there is a biopsy specimen? Because there's no way I can find that out myself. Or perhaps the judge can order the medical records to find out? But the wife would have to reveal where he was treated? Complicated... I know where he died. But it was a hospice and there would be no biopsies there. Death cert. says he had the cancer for "years" before he died so imagine he was diagnosed and perhaps treated somewhere else. Unfortunately the cert. has an illegible word on it in the diagnosis and all I can see is "carcinomatosis" as the cause of death. That just means widespread cancer.

and also.

I think you can file an interstate paternity case from your own state under something called the long arm statute and UIFSA, and the responding state's law applies.

From US Dpt of Health and Human Services:

CHOICE OF LAW/DETERMINING WHICH STATE'S LAWS APPLY (CL)

CL1
Q. Which State's laws apply in a UIFSA proceeding?

A. Under UIFSA (303), the general rule regarding choice of
law is that the responding State's law controls.

and, there is the Uniform Parentage Act, 2002, Revised, section 508, which says the judge may compel if he feels there is good reason the genetic testing of a relative of alleged father.

But not all states have adopted the revised UPA... yet anyway. NY and Georgia have not. Most states have adopted portions of it.

SECTION 508. GENETIC TESTING WHEN SPECIMENS NOT AVAILABLE.

(a) Subject to subsection (b), if a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing:

(1) the parents of the man;

(2) brothers and sisters of the man;

(3) other children of the man and their mothers; and

(4) other relatives of the man necessary to complete genetic testing.

(b) Issuance of an order under this section requires a finding that a need for genetic testing outweighs the legitimate interests of the individual sought to be tested.



Comment



In some cases, the alleged father may be unavailable for testing. Subsection (a) accommodates those cases by providing for testing of the man’s relatives to establish his paternity or nonpaternity of a child. Depending on the proceeding, some of the individuals listed for testing in subsection (a) will be parties to the paternity proceeding and others will not. If an individual does not volunteer to participate in the testing and is not a party, in the absence of this provision the court would be required to decide whether it has the authority to order the testing and whether testing the objecting individual is necessary. This provision resolves the issues. Given the fact that genetic testing in the modern age is not invasive--use of the buccal swab method means that the intrusion into the privacy of the individual is relatively slight compared to the right of the child to have parentage established. Moreover, the alleged parent also has a right to have that fact determined.



Note that no provision is explicitly made for court-ordered testing of maternal relatives because the establishment of paternity by genetic testing is in no way dependent on testing the mother of the child. However, if maternity is at issue, § 106, Determination of Maternity, directs that this section be construed to test the relatives of the mother.





SECTION 509. DECEASED INDIVIDUAL. For good cause shown, the court may order genetic testing of a deceased individual.



Comment



In some states, the court with jurisdiction to adjudicate parentage may lack authority to order disinterment of a deceased individual. If so, that authority is provided by this section.