Do Unmarried Mothers Have Legal Custody in New York?

Unmarried Mothers' Rights

If you’re an unmarried mother and you had a baby, you’re probably wondering about your custody rights. Unwed mothers automatically assume full legal and physical custody of their child at birth as long as the court has not made an order taking away the mother’s rights. However, the father may be able to obtain some measure of custody if he is able to legally establish paternity.

The term “legal custody” refers to the right to make important decisions about your child, such as where your child will go to daycare or school, who your child’s pediatrician will be, who can watch your child, and where your child will live.

“Physical custody” has to do with who has the child in their physical care. As an unwed mother who meets the criteria mentioned early, you, not the father, have sole legal and physical custody. This means the child’s father has zero rights and responsibilities toward his child...for now.

Custody Can Be Changed

Even though you currently have sole legal and physical custody, that doesn’t mean it can be changed because it can. If you decide you want a child support order, paternity will need to be established. If the presumed father wants to be in his child’s life and seek custody or visitation, again, paternity will have to be established.

The courts have no power to issue child custody or child support orders until paternity is confirmed through an Acknowledgement of Paternity (AOP) form being signed by both parents or by filing a petition with the court to determine paternity. If there is any doubt about who the child’s father is, the parents should not sign the AOP form. Twenty-one years is a long time to pay child support for a child who has a different father.

“If there is any doubt about the identity of the biological father, parents must not sign a voluntary Acknowledgment of Paternity form. Instead, the parents should petition the court to determine paternity. The court will order the mother, child, and alleged father to submit to certain genetic tests. Based on the results of the test, the court will determine whether the alleged father is the legal father of the child,” according to New York State.

For more information on filing a paternity claim, contact Jason M. Barbara & Associates, P.C.