How Does Child Custody Work With Unmarried Parents?

According to the CDC, 40 percent of all births in the U.S. are to unmarried women. Marital status does not change parental rights; however, it does impact how those rights are determined, created, and enforced.

Unmarried Birth

In New York, when a child is born to an unmarried mother, the mother automatically has sole legal and physical custody. That means she has absolute control over the child and who the child spends time with. If the second parent is not listed on the birth certificate and the mother is unmarried, no one else has automatic parental rights to the child at this point. Further actions or proceedings are needed to establish legal parentage.

Determination of Paternity

There are two ways in which legal paternity for a biological father can be established in New York state.

  1. Acknowledgment of Paternity (AOP) Both parents can sign this form (available at the hospital or prepared by an attorney) acknowledging that the man signing the document is the child’s biological father. A mother cannot list a father on the birth certificate without his signature and completion of the Acknowledgment of Paternity document. This form can be filed at any time until the child is 21 years old.
  2. Order of Filiation A paternity case can be instituted in New York’s Family court to determine who the biological father is. Either parent can file a petition seeking paternity. Paternity is determined via a DNA test or an admission by the man that he is the biological parent. An Order of Filiation is then entered by the court which determines legal parentage. This proceeding can be brought at any time until the child is age 21.

If the child’s mother is legally married at the time of the birth, her spouse (whether same sex or opposite sex) is automatically legally the child’s parent. To change paternity to an actual biological father who is not the spouse, a paternity case must be instituted, and the husband must be served with notice of the proceeding.

Putative Fathers

New York state maintains what is called the Putative Father Registry. This is a record of:

  • Claims of paternity filed by men who believe to be fathers of children but have not yet been legally determined to be so
  • Acknowledgments of Paternity signed by mothers and fathers, establishing parentage
  • Court Orders of Filiation establishing parentage

The registry sends legal notices to all men in the registry whenever there is any Family Court proceeding involving the child they have records in regards to. So, if a man believes he is the father of a child but has not yet received a determination of paternity, he can receive notice if there is an abuse proceeding involving the child or if someone else is seeking custody of the child.

Last Names

When a child is born to an unmarried mother, she has the right to choose any last name she would like for the child, including her own or that of the father. Once paternity is established, the father has the right to ask the court to change the child’s name, but that decision will be made based on the child’s best interests. Note that name change decisions are made in the Supreme Court, not in Family Court, in New York. Case Law indicates that the court will almost always order that the child should have the father’s last name unless he is completely uninvolved in the child’s life.

Child Custody

Child custody and visitation cannot be addressed in New York until legal parentage has been established. Once paternity has been admitted or determined, the court will then consider requests and petitions about custody. Unmarried child custody cases are approached with the same standards used in married custody cases. Neither parent is automatically presumed to have a greater right to custody. These cases are heard in Family Court, whereas custody cases involved in a divorce are heard in Supreme Court.

The controlling principle in a custody determination is what is in the best interests of the child. New York statutes lay out some specific considerations the court may take into account when determining custody:

  • Any history of the parents interfering with the other’s scheduled parenting time
  • Child abuse
  • Domestic violence in the child’s home or the parents’ relationships
  • Each parents’ ability to provide a stable home for the child
  • Each parents’ financial ability to care for the child
  • Each parents’ relationship with the child and how involved they have each been in various parts of the child’s life
  • The child’s preference for custody if they are old enough to have a reasoned opinion
  • The educational opportunities each parent can offer the child
  • The environment at each home
  • The parents’ history of substance abuse
  • The parents’ mental and physical health and how it impacts their ability to care for the child
  • The parents’ schedules

Child Support

Once custody is determined, the court can set child support based on the New York Child Support Guidelines. If there is one child, parents are expected to provide 17 percent of their income for child support. However, New York state caps the parental income that can be considered at $148,000.

After that income amount, there is no set formula for how much child support should be paid on income over that amount. The court has discretion to set child support for this excess income and can consider a variety of factors:

  • Unusual expenses associated with visitation, such as extended visits with the non-custodial parent, that decrease the custodial parent’s parenting costs
  • The parents’ educational needs
  • The impact on the child of the decision to order or not order additional child support
  • Tax consequences of child support
  • Special needs the child may have
  • Other child support payments made by either parent for other children
  • How much the family income exceeds the cap and whether one parent or the other is primarily responsible for the income
  • Contributions each parent makes to a child’s life that are not financial in nature
  • Anything else the court thinks is relevant

In addition to child support payments, the non-custodial parent can be required to pay for or contribute to the child’s health insurance, medical expenses, educational expenses, child care costs, and extracurricular activity costs.

Same Sex Couples and Parentage

If a woman in a same sex unmarried couple gives birth, her partner has no automatic legal rights to the child. If a man in a same sex unmarried couple has a child with another partner or adopts a child, his same sex partner has no automatic legal rights to the child. A same sex partner can adopt a partner’s child to become a legal parent.

New York courts have recognized a non-married same sex partner’s parental rights if:

  • The partners agreed together to conceive a child, and
  • The partners agreed together to raise the child

Note that this does not result in automatic legal parentage. This is the standard used when a non-biological parent in an unmarried relationship petitions for custody and visitation. The court must apply the best interests standard in determining custody, but this rule allows the court to legally assign parentage to a non-married partner. Note that this only applies to same sex couples, not to heterosexual unmarried couples.

Best Path Forward for Unmarried Parents

If you and your partner are unmarried and having a child together, it is best to meet with an attorney to have an Acknowledgment of Paternity drafted so that it can be submitted immediately upon birth. The second parent has no legal rights to the child until this is submitted. If you are in a relationship and will be parenting together, you do not need a custody or support order. However, it is recommended that you work with your attorney to create an agreement for how you will parent and share support responsibility should your relationship end in the future. This is similar to a prenuptial agreement, but it is a parenting plan since you are not married.

If you and the other parent are not in a relationship or do not live with each other, you should meet with your attorney to first make sure an Acknowledgment of Paternity is signed and filed, establishing legal rights. Next, you should try to work out an agreement regarding custody and visitation, and child support. Even if you have a plan that you both agree on, you need to have this put in writing and formalized in court so there can be no confusion over it now or in the future.

Unmarried parents have important rights in New York state. It is a good idea to talk with your attorney if you have or plan to have a child and are not married.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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