Historically, when parents decided to separate or divorce legally, courts nearly always awarded the mother custody of the children. Today, our culture has recognized the importance of fathers’ rights and parents of either sex in parenting effectively. As a result, the laws are different, and courts may not award child custody to a mother simply because she is a woman. The term ‘father’s rights’ has been used to refer to the responsibilities and rights of fathers when it comes to parenting. New York judges must carefully weigh the child’s best interest when awarding custody, leading many fathers to obtain custody of their children. 

Courts Cannot Assume That the Mother Should Receive Custody

Spouses going through a divorce or unmarried parents may disagree on a child custody plan on their own. When the parents cannot agree voluntarily, a family court judge will need to make a child custody decision for the parents that will be legally enforceable. New York judges must consider the child’s best interest as paramount when making these types of decisions. 

When the court evaluates the evidence and believes that it is in the child’s best interest to live with the father, the court should award custody to the father. New York courts are not allowed to assume automatically that the mother is the more fit parent without considering how that would benefit the child. The court must consider several different factors when determining which type of custody arrangement would be best for the child, including the following:

  • The child’s age
  • The child’s preference, when the child is over a certain age
  • The emotional bond between the child and each parent
  • The child’s current way of life
  • The child’s health
  • Each parent’s lifestyle and health
  • Each parents ability to provide for the child’s needs

Sometimes the parents who have had physical custody of the children throughout the court proceedings and are currently their primary caretakers will have the advantage in a child custody case. The judge may decide that he or she does not want to disrupt the child’s life by changing the primary caretaker. However, just because one parent is the primary caretaker does not mean that that parent will automatically receive custody. 

After the judge evaluates all of the factors in the case, evaluating the mother and father equally, the judge will make a custody decision. There is a presumption in New York that parents should try to co-parent together because the court recognizes the value of both parents being active in their child’s life. Typically, judges will establish some type of co-parenting arrangement whenever possible. 

When a co-parenting arrangement is not possible, they may award primary custody to one parent. The court may deny visitation to a parent they deemed dangerous or unable to interact with the children safely. If you have been denied visitation rights with your child, working with an experienced lawyer can help you establish a plan to regain those visitation rights.


Establishing Paternity in New York City

In the state of New York, fathers who are not married to the mother of their child or who did not sign an acknowledgment of paternity cannot be granted custody or visitation rights. Before a court in New York grants visitation or custody rights, the father must establish paternity legally. 

Establishing paternity can be achieved in one of two different ways. The first option is for the father to petition the court for an order of paternity. The voluntary acknowledgment of the paternity form states that the man signing is the child’s legal father. Both parents must sign the form, and two witnesses present at the signing and not related to either parent must also sign the form. Typically, this form is filled out by parents in the hospital when the child is born.

Alternatively, both parents may decide to acknowledge the child’s paternity in writing and record this with the child’s birth certificate. In New York state, a father can submit a paternity petition anytime from the point when the child’s mother becomes pregnant until the child turns 21 years old. 

Once the paternity case starts, the court may order the mother, the presumed father, and the child to submit to genetic testing to establish the child’s biological father. After the child’s biological father has been identified, the court will issue an “Order of Filiation.” The Order of Filiation declares that the presumed father in the case is the child’s legal father. At this point, the father’s name can be added to the child’s birth certificate.


Father’s Rights to Child Support in New York

When a court grants a father the role of primary caregiver, the father can file for child support, just as a mother would do in a similar situation. Child support payments are payments from one parent to another to help financially support the child or children. Child support payments give the primary caretaker funds to provide clothing, food, shelter, and medical care for the child, along with expenses for school and extracurricular activities. Fathers who act as primary caregivers for their children have the same legal right to request and receive child support as mothers in New York state.


Discuss Your Case With a Fathers’ Rights Attorney

Fathers involved in a legal separation, divorce, or another child custody issue should discuss their case with an experienced fathers’ rights lawyer. Attorney Jason Lutzky understands the unique challenges fathers face in child custody matters. He will inform you of your rights and legal options, represent you aggressively in court, and protect your right to be an active parent in your child’s life. Contact the Law Offices of Jason Lutzky today to schedule your initial consultation to learn more about how we can fight for you and your child’s best interest.