Is He the Father? Separation Without Marriage

Recent studies have shown that one out of every four babies born in the United States is born to unmarried parents who often live together. This raises difficult issues when the parents decide to separate. Do both parents have rights to the children? Which parent gets custody of the children?

In New York, both partners — provided that the court recognizes them as legitimate parents — can turn to the courts to pursue their rights to custody of the children.

While there is almost never an issue as to the identity of the mother — her identity is usually established in a hospital at birth and recorded in the birth certificate — identifying the biological father may not always be as cut and dried.

New York law presumes that the husband is the father of the child. An unmarried father does not benefit from such a presumption and may need to establish his paternity with the court. Paternity may be established in the court by a number of methods, including an acknowledgment of paternity or a petition for paternity.

• An acknowledgment of paternity is a document that both the mother and father sign, usually shortly after a baby’s birth, agreeing that the father is, in fact, the father. This document creates a legal father-child relationship. The father then has both child custody rights as well as an obligation to support the child.
• A petition for paternity is an action in Family Court to officially identify the purported father as the actual father of the child. In many paternity cases, the parents agree and simply present their testimony to the judge that the claimed father is indeed the father.

Paternity cases become more complex when either the alleged father or the mother disagrees about the identity of the father. The parties may use evidence — including DNA or proof of the father’s involvement (or lack of involvement) in supporting and parenting the child — to prove that he is or isn’t the father of the child.

If the court finds that the alleged father is the actual father then it issues an Order of Filiation that legally recognizes the parent-child relationship. The order establishes custodial rights and creates an obligation to support the child.

Paternity is an increasingly a common matter to resolve before even reaching child custody issues. Contact a family law attorney for a consultation. We will help you with this and all of the other issues involved in pursuing your custody rights.