Can You Get Custody Without Establishing Paternity in NYC?

For unmarried parents facing child custody issues in New York City, a common question is whether it is possible to obtain custody without first proving paternity. In most cases, especially for fathers, the answer is no. New York’s custody and visitation laws treat both parents equally once legal parentage is confirmed, but require a formally recognized legal relationship between a father and child before custody rights can be pursued.

A New York City child custody lawyer from the Law Office of Vivien I. Stark, P.C., can guide parents through the legal steps required to establish paternity and assert custody rights, ensuring they understand their options and responsibilities under state law.

The Importance of Establishing Paternity

Paternity is the legal identification of a child’s father. While paternity is typically presumed for married parents, this presumption does not apply to unmarried parents. Before a New York court can issue orders regarding custody or visitation for an unmarried father, paternity must be legally established. This step creates the legal standing necessary for a father to assert his rights and responsibilities concerning his child. There are several ways to establish paternity in New York:

• Acknowledgment of Paternity (AOP): If both parents agree on paternity, they can sign a voluntary Acknowledgment of Paternity Once properly executed and filed, this form has the same legal effect as a court order. This means that if for example, a parent finds out at a later time through DNA testing that the child is not his, in almost all instances, the father will have waived his right to contest paternity, use those findings or obtain a new DNA test.
• Court order: If parents disagree on paternity or if there is a dispute, either parent can petition the Family Court to establish paternity. The court may order DNA testing to determine the biological father definitively. Once confirmed, the court will issue an order of filiation.
• Birth certificate listing: Although being listed on a child’s birth certificate indicates parentage, it may not be sufficient alone to establish full legal paternity for custody purposes, especially in contested situations. Formal steps such as an AOP or court order may still be required.
• Child support order issued after a finding of paternity: In the New York courts, a paternity case automatically is converted into a child support case once paternity is either admitted or determined after trial. Child support terminates at the age of 21 unless the child is working full-time and earning enough money to be self-supporting, gets married or joins the military. Under certain circumstances with special needs children, child support may be extended to 26. This is why it is critical that a parent consult and retain an experienced paternity/child support attorney prior to consenting to paternity or signing an AOP.

Custody Rights Once Paternity Is Established

Once paternity is legally established, an unmarried father in New York holds the same rights and responsibilities as a married father. The next step involves determining custody and visitation arrangements, always with the child’s best interests as the court’s primary concern. Custody in New York is typically divided into two categories:

• Legal custody: The right to make significant decisions about a child’s upbringing, including education, healthcare, and religious instruction
• Physical custody: Determines where the child primarily lives and who is responsible for their daily care

Courts can award either type of custody solely or jointly. When making custody decisions, they consider several factors, such as each parent’s ability to provide for the child, the stability of each home environment, the child’s relationship with each parent, the child’s preferences depending on age, and any history of domestic violence or substance abuse.

Navigating the Custody Process

Unmarried parents who have established paternity can work together to create a parenting plan through mediation or with the help of their attorneys. If they reach an agreement, they can submit it to the court for approval, making it a legally binding order. If they cannot reach an agreement, they will proceed to court, where a judge will make determinations regarding custody and visitation based on the child’s best interests. Establishing paternity in New York City is a foundational step for unmarried fathers seeking to secure custody and visitation rights.