Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- New York law gives neither parent a prima facie right to custody.
- If you were not married, the mother has sole custody until you establish paternity.
- Being on the birth certificate is not the same as legal paternity.
- An Acknowledgment of Paternity can only be undone within 60 days. Read it before you sign.
It may be difficult for fathers to retain custody of their child. This is why, if you are concerned about your child’s future in the wake of a divorce, it is important that you retain the services of an experienced Long Island fathers’ rights lawyer. Our legal team at Barrows Levy PLLC is prepared to assist you with your custody matters as a father. Continue reading to answer some of your most common questions about fathers’ rights.
What Should I Know About Fathers’ Rights in New York?
Fathers are historically at a disadvantage when determining child custody agreements. However, courts are supposed to be gender-blind when making a decision regarding child custody.
This neutrality is written into law, as, in accordance with Domestic Relations Law § 240 and § 70, neither parent has a prima facie right to custody, eliminating the older maternal preference. A judge making a custody determination must do so in accordance with the child’s best interests standard. This essentially requires the court to make decisions based on the health, well-being, and safety of the child above all else.
Unfortunately, there is still an unspoken bias against fathers. This is why it is important for fathers to retain the services of an experienced family law attorney who can help preserve and enforce the bond that they have with their child so that their child can continue to have a stable and lasting relationship with them and their co-parent.
If You Were Not Married, Start With Paternity
First and foremost, if a child is born to unmarried parents in New York, the mother will be granted sole physical and legal custody immediately. Until paternity has been legally established, the father has no standing to seek custody or visitation and no way to compel the mother to allow contact.
This is true, regardless of how involved in the child’s life you have been. Living with the child, providing financial support, being present for the birth, or even being listed on the birth certificate does not make you the child’s legal father. In New York, there are two legal avenues to establish paternity:
- An Acknowledgment of Paternity: A voluntary form signed by both parents, typically at the hospital following the birth, though you may complete and sign the form at a later date through the local child support office or birth registrar. Once the Acknowledgment of Paternity is filed with the Department of Health, it carries the same weight as a court order.
- An Order of Filiation: If the mother will not sign the Acknowledgement of Paternity, or paternity of the child is disputed, either family can file a petition for paternity in the Family Court. As a result, the court can order genetic testing, and if courts confirm paternity, it can issue an order naming you the legal father.
Once either is in place, you may petition for custody and parenting time on equal footing with the mother.
Think Carefully Before Signing an Acknowledgment
Despite the brevity of the form, you should carefully review the document as once it is signed, it can only be rescinded by a Family Court within 60 days, and only after proof of:
- Fraud
- Duress
- Material mistake of fact
A man who signs the Acknowledgement and later learns through DNA testing that he is not actually the biological father, in most cases, no longer has the ability to contest it, in addition to the obligations that come with legal fatherhood.
It Protects Your Child, Not Only You
Establishing paternity, though often framed as a father asserting his position, also provides considerable benefit to the child as well. Legal paternity provides a child with the right to a legal inheritance, eligibility for Social Security benefits on the father’s records, access to coverage on his father’s health insurance, and standing to bring a claim if he passes through someone else’s negligence.
What Is the Difference Between Physical Custody and Legal Custody in New York?
Fathers should learn the difference between physical and legal custody as the first step in their custody battle. Physical custody deals with where the child will reside, while legal custody refers to a parent’s right to make certain decisions on behalf of their child. Physical custody is important. However, when it comes to preserving your right as a child’s father, it is incredibly important to retain legal custody of your child, at the very least.
Retaining legal custody allows fathers to have a say in where their child goes to school, the medical treatment their child will receive, the type of religion their child practices, and more. With the assistance of our legal team, we will demonstrate to the courts that as the child’s father, you have a right to continue to be a part of their life and to be a role model to ensure their success in life.
If you are a father and your parental rights are believed to be in jeopardy, the best thing that you can do is to reach out to a dedicated Long Island family law attorney. Our legal team at Barrows Levy PLLC is prepared to fight for you and your child’s best interests. To learn more about our service and how we can assist you, give our firm a call today.
Contact an Experienced Family Law Firm Today
Barrows Levy PLLC is a dedicated New York law firm focused on providing quality legal services to clients in New York City and Long Island. If you require a lawyer who has notable experience handling family and estate planning matters, Contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
