More than 3.6 million babies were born in the United States in 2020. According to the National Center for Health Statistics, more than 40% were born to unmarried mothers. That is a significant increase over 30 years ago when 28 percent of children were born outside of marriage.
Some of these children receive court-ordered child support and unmarried partners petition for child custody or visitation.
Before any of these legal cases can be brought before a judge, New York law requires something not asked of married parents: proof of paternity.
Presumption of Custody for Unmarried Mothers
When an unmarried woman gives birth, the state automatically gives her full legal and physical custody of the baby. Legal custody gives the mother the authority to make all decisions for the child, from where they live to their religious training to what medical care they receive. Physical custody means the child will live solely with the mother.
Unlike married partners, the biological fathers in these cases have no legal rights or responsibilities. They must petition the court for custody or visitation in Family Court. But the court will not hear the case until paternity is established.
Methods for Establishing Paternity in New York
When a child is born to a married couple, both parties are automatically given equal parental rights.
An unmarried father must establish paternity using one of the following methods:
- Acknowledgment of Paternity: When the child is born, the mother and father can voluntarily sign an Acknowledgment of Paternity form at the hospital. The form can also be obtained from the local child support office or birth registrar.
- Order of Filiation: A court order called the Order of Filiation can name the father. If the mother and father agree on the paternity, the order can occur “on consent.” When the father’s identity is disputed, the court has the authority to order a DNA test on the mother, the child, and the alleged father.
A father named by either method has the right to pursue custody or visitation. Once paternity is confirmed, child custody cases involving unmarried parents are similar to those going through a divorce.
Evaluating the Best Interests of the Child
The guiding principle in all custody cases is the best interests of the child. New York believes that a strong relationship with both parents is beneficial in most cases. A noncustodial parent should receive significant parenting time unless that is determined to be unsafe for the child.
Factors considered in custody judgments include the following:
- Each parent’s strengths and weaknesses
- The mental and physical health of the parents
- Any history of domestic violence in the family
- The work schedules and availability of each parent
- The stability of each parent
- Each parent’s finances
- Court’s observations of the parents
The judge can award joint or sole custody physical and legal custody. If one parent is given sole physical custody, the other parent is typically granted visitation.
Child Support for Unmarried Parents
Unmarried mothers, along with automatic custody, are also solely responsible for caring for the child. Before seeking child support from the biological father, paternity must be established by one of the methods. An Order of Filiation automatically begins a child support case.
Child support calculations follow the same formula used for divorcing parents.
Legal Support for Unmarried Parents
If you need to establish paternity, petition for custody, or seek child support, we can help. At Jason M. Barbara & Associates, P.C., we have negotiated custody and support agreements and effectively litigated cases in court.
Find out how we can help your custody or child support case. To speak with one of our attorneys, reach out online or call (516) 406-8381.