Under New York law and the U.S. Constitution, fathers and mothers have equal legal rights. Both parents stand on equal footing in the eyes of the court.
Here are some suggestions about how to use that principle of equality to protect your rights as a dad.
Establishing Parental Rights
Father’s rights in New York come from paternity or adoption. To have legal standing to assert your parental rights, you must:
- Be married to the child’s mother at the time of birth
- Sign an acknowledgment of paternity with the mother
- Obtain an order of filiation in a paternity action
If any of these happened, you can assert your parental rights in court. If none of these happened, you need to establish paternity before you can assert your rights.
Your options for establishing paternity depend on the mother’s marital status.
The Mother Was Unmarried When Your Child Was Born
If the mother wasn’t married to you or anyone else when the child was born, you can establish paternity with either an acknowledgment of paternity or a paternity lawsuit.
In New York, an unmarried mother cannot add a legal father to the birth certificate. Instead, the hospital will provide an acknowledgment of paternity that both you and the mother must sign.
This prevents an unmarried mother from unilaterally adding a father to her child’s birth certificate. If both you and the mother sign the acknowledgment of paternity, the birth certificate will name you as the legal father.
If the mother refuses to sign the acknowledgment of paternity, you must file a paternity action before the child turns 21. This lawsuit allows you to present evidence of paternity, such as DNA test results or cohabitation around the time of conception.
If the judge finds clear and convincing evidence that you fathered the child (a DNA test indicating a match), the judge will issue an order of filiation naming you as the legal father.
The Mother Was Married to Someone Else When Your Child Was Born
If the mother was married to someone else when your child was born, the mother’s spouse is the presumptive father of the child. This is true even if both the mother and her spouse acknowledge you as the biological father.
The only way for you to establish your parental rights and cut off the spouse’s rights is through a paternity action. In other words, if the mother was married when the child was born, you cannot validly sign an acknowledgment of paternity. Instead, the child’s birth certificate will name the mother’s spouse as the father.
You can only change this outcome with an order of filiation.
Asserting Your Rights in Court
Once you establish paternity, you can assert your rights in court. Some rights you get as a parent include the following items.
As the father, you have the right to request involvement in the decisions that affect your child’s life. Having joint legal custody gives you the right to help decide your child’s:
- Health care
New York courts do not have a presumption in favor of joint custody. But unless you or the mother have issues in your past that call into question your ability to work together, a court will try to find a way for you to participate in your child’s upbringing. If you have joint legal custody, you will have an equal voice in making decisions about your child.
Parenting time, co-parenting, and visitation all support the idea that children should spend time with both their parents and parents should spend time with their children.
Establishing paternity gives you the right to request an order for visitation with your child. If you cannot work something out with the mother, the court can set a parenting time or visitation schedule.
It is common for modern fathers to obtain equal or nearly equal parenting time, depending on the age of the child, the father’s work schedule, and how feasible the schedule is for the father and mother to accommodate.
Physical Custody or Sole Legal Custody
You also have standing to request physical custody of the child or sole legal custody. If you can demonstrate that you are better able to provide for the child’s needs or can demonstrate the ability to make better judgment decisions for the child, you may be able to obtain full physical custody and/or sole legal custody. We have successfully obtained custody for fathers under the appropriate circumstances.