Child custody is a parent’s right to make decisions about their child or children. Child custody orders outline which parent is responsible for making decisions for the child and where the child will reside for the majority of the time.
The custodial parent is the parent who is awarded the most rights and typically who the child resides with the majority of the time. The non-custodial parent is the other parent.
This custodial parent is responsible for the day-to-day care of the child as well as for making decisions involving:
- Healthcare;
- Education;
- Religious indoctrination;
- Various other decisions made by the main caretaker of a child.
The non-custodial parent will typically be awarded visitation rights. They may also be ordered to make child support payments to the custodial parent.
It is important to note that, in the State of New York, an unmarried birth mother is automatically awarded sole custody of children. However, once the father establishes paternity, they will have legal rights related to the child.
One of the easiest ways to establish paternity is for the father to put his name on the child’s birth certificate when they are born. This will provide the father with the ability to obtain both visitation and custody rights.
Any legal decisions regarding a child, including custody and visitation, are made according to the child’s best interest standard. This standard provides that what is best for the child will take precedence over the needs or wants of the parents.
If the father is named on the birth certificate, any disputes involving custody and child support will likely be treated as if the parents were legally married. It is important to note that there are special child custody rules in the State of New York that may apply in these cases.
Can an Unmarried Father Take a Child from the Mother?
If the parties are unmarried but paternity is established, both the father and the mother have equal rights until a court orders otherwise. If the mother can show that the father poses a serious risk of harm to the child, the court may order supervised visitation or award sole custody to the mother.
The rights that are provided to biological fathers will depend on their legal classification, which may include:
- Putative father: An alleged, or putative father, is usually defined as a man who claims to be a child’s biological father but has not legally established paternity.
- Unmarried father: The law typically treats unmarried fathers differently than married fathers in relation to paternity rights. States often define an unmarried father as the child’s biological parent who was not married at the time of the child’s birth.
- Unmarried fathers must put their name on the birth certificate or sign an acknowledgment of paternity to legally establish their rights as a child’s father.
- Once the individual has been deemed to be the child’s father, they will have the full legal obligation of caring for the child, including by paying child support.
- Presumed father: This category is typically the individual who is presumed to be the child’s father based on certain conditions, including:
- When the child is born during or shortly after a divorce, and the husband of the marriage is considered the child’s father
- When the presumed father voluntarily acknowledges paternity
- When the presumed father openly treats as if the child were his own, for example, by receiving the child into his home.
If an individual in New York has any questions regarding their status as a parent, they should consult with a local attorney in New York for a legal consultation.
What Will Likely Happen if There Is a Custody Battle Between Unmarried Parents?
Child custody laws for unmarried parents will vary by state, so it is important to consult with a local attorney to determine exactly what laws apply. In general, however, a court will typically order shared custody.
In some jurisdictions, a court may award joint custody and name one parent as the custodial parent. It is not common for the other parent not to be awarded any visitation rights whatsoever.
This only occurs if the other parent was deemed unfit based on physical abuse, substance abuse, or other issues. If paternity is an issue, the father can petition the family court to establish paternity.
This step would not be necessary if the father’s name is on the birth certificate. However, if it was not, a DNA test can be ordered to determine paternity.
Once paternity is established, the unmarried father will have the same rights as a married father. If the parties can attempt to be amicable and compromise, they may be able to avoid a custody battle.
If the parties are able, they can draft their own custody agreement that meets their unique needs and have the court approve it. Even if the parties draft their own agreement, any child custody decisions will be made according to the child’s best interest standard in New York.
The parties should strongly consider having legal representation during custody cases and when drafting their custody agreement, as a lawyer can help the parties understand the ramifications of any decisions they make.
What Are Some Other Issues That Unmarried Parents May Experience?
The biggest issue unmarried parents face is paternity, which is not established. The majority of states, including New York State, allow a voluntary acknowledgement of paternity, which is completed through a form signed by both the mother and the father.
The form has to be filed with the correct state office, typically the vital records office. This document will have the father’s name put on the official birth certificate. The voluntary acknowledgement of paternity may be signed at the hospital when the child is born or at a later time.
Another issue unmarried parents face is determining which parent claims the child on their taxes, as only one of the parents is permitted to do so. Child support payments are not taxable and cannot be deducted by the payor on their taxes.
If an individual is a non-legal parent to a child, such as a step-parent, they may not have the legal right to make decisions on behalf of the child, as legal parents have priority. It is advisable, when possible, for the step-parent to adopt the step-child and act as their legal parent.
Child support can be a major issue. To be able to properly care for a child, the custodial parent is entitled to receive financial support from the non-custodial parent, even if the parents are not married. If, however, a step-parent adopts the child, the child’s other biological parent is dismissed from having to make child support payments.
Jurisdiction is another issue that arises in custody cases if the unmarried parents reside in different states. Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the child’s home state is the court that has jurisdiction over child custody matters. If the child has resided in a different state for six months or more, their previous home state no longer has jurisdiction.
Do I Need an Attorney for Help with Child Custody Issues Between Unmarried Parents?
If you have a child and are not married to the child’s other parent and are having any issues related to child custody in New York State, you should consult with a New York child custody lawyer. Remember, the child’s best interests will be considered above all else, including your preferences.
Your lawyer will help you understand the New York laws that will apply to your situation, how to best protect your child’s interests, and how to best protect your parental rights.
LegalMatch has a pre-screened database of member lawyers who can help you with your New York child custody issue or question. All you have to do is submit your question or issue on the website at no charge and wait for lawyers to respond, which typically happens in about 24 hours.
