If the unmarried parents of a child separate, then some general issues that they may face are how to establish paternity, how to file for child support, and how to file for custody or visitation.
Paternity can be established if the father is listed on the child’s birth certificate, and he signed an acknowledgment of paternity. If this the father is not listed on the birth certificate, then one parent can file a paternity petition in the family court. Provided the other parent was served, the court can order the mother, the child, and the person alleged to be the father of the child to undergo a genetic marker test or DNA test.
There are instances where the court will not order a genetic marker test or DNA test. For example, if “it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman,” pursuant to NY Family Court Act Section 532. The test result will be in evidence if there is no timely objection. There is a cost for the testing, usually paid by the person who filed. However, if they are unable to pay, then the court will determine who will pay. The payment may be split between both parties. If the results reveal that the gentleman is not the father of the child, then the court will dismiss the petition. However, if the results show that he is the child’s father, then the court will enter an Order of Affiliation, declaring him to be the father of the child. If there is an issue about the best interests of the child, then the court may appoint an Attorney for the Child (AFC) to represent the issues of the child. The AFC may interview the child and report back to the court.
Once the court issues an Order of Affiliation, it can direct payment of child support. The child support order will be retroactive to the date of the filing of the paternity petition or when public assistance became active, whichever is first. For unmarried parents, a parent will pay child support until the child is 21 years old unless the child is emancipated.
Non-payment of child support
The custodial parent can file a violation petition against the non-complying party seeking specific remedies from the court. Some of the standard solutions include a money judgment, incarceration, payment of the custodial parent’s legal fees, and a finding of willfulness. Once a violation petition is filed, there is a specific time for the judge to conduct the hearing.
Modification of child support
If you are unable to pay child support, you can file a petition to modify the order. Under New York Family Court Act Section 451 (3) “(a) [t]he court may modify an order of child support. . . upon a showing of a substantial change in circumstances… (b)… [T]he court may modify an order of child support where: (i) three years have passed since the order was entered, last modified or adjusted; or (ii) there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted.” It is crucial that you file as soon as possible because if the court ultimately decides to lower or raise your current child support obligation, then it will be retroactive to the date you filed the petition with the court.
After the petition is filed, you will get a court date. The other party must be served before the court appearance. You should take all your documents to the court that support your position as to why you cannot afford to pay the current order. Some documents are letters from past employers, prior tax returns with all schedules, and W-2’s or 1099’s, recent pay stubs, a signed and notarized financial disclosure affidavit. If you own your own business, then you should gather all documents relating to the business, including proof of income and expenses, and prior tax returns and all schedules. If you are currently not working, then take documents showing that you are actively looking for a job, and any records you may have if you applied for unemployment or disability.
Custody and Visitation
Once paternity is established, the court can also issue orders relating to custody and visitation. Custody refers to both physical and legal custody of a child. Physical custody refers to whom the child will live with and where the child will live. Legal custody refers to who will make the decisions for the child. Joint physical custody means that the child will live with both parents for an equal amount of time, whereas sole physical custody means that the child will reside with one parent most of the time. Sole legal custody means one parent makes all the decisions for the child in regards to health, education, religion, medical, and any other major decision, usually after meaningful consultation with the other parent. Joint legal custody means that both parents make these decisions. Typically, one parent, the parent with whom the child resides most of the time, has final decision making on those issues if the parties are unable to reach an agreement. Sometimes, the final say on the decisions will be divided between the parents.
The parent seeking custody or visitation can file a visitation petition in family court in the county where the child lives if the child has lived in the state for at least six months before the filing of the petition. Once a petition is filed, and the case goes before a judge who will apply the best interest of the child standard. Depending on the child’s age, an attorney for the child can be appointed.
When awarding visitation, some things that the court will look at are
- Is the child a victim of domestic violence?
- Does the parent seeking visitation have an alcohol or drug problem?
- Is the person who is seeking visitation able to care for the child?
Depending on the answers, the court can order drug or alcohol testing, and award supervised visitation either at a facility or by someone the parties both agree to like a family member or friend. If it is at a facility, then it will be for the number of visits as specified by the court. The case will then be adjourned to allow the supervised visits to occur. Before the court appearance, the judge will receive a report from the facility detailing the visits if the court-ordered supervised visits at a facility. The judge will then determine whether to continue with supervised visits or modify the visits.
If the parties can communicate, then they can probably reach an agreement regarding visitation. However, if they are unable to do so, the judge will have to have a trial to determine reasonable visitation in the child’s best interest.
About Jayson Lutzky
Jayson Lutzky has been practicing law in New York State for over 37 years. He primarily handles divorce, family law, personal bankruptcy, personal injury, and medical malpractice cases. Jayson is fluent in both English and Spanish. He is a member of the Bronx County Bar Association, is admitted to the Federal Court for the Southern and Eastern Districts of New York, and has received numerous awards. In 2000, Jayson won the President’s Pro Bono Service Attorney Award from the New York State Bar Association and also received recognition from the Network for Women’s Service Commitment to Justice Award. Recently, Jayson won recognition from Martindale-Hubbell and AVVO. Jayson is also an arbitrator in the Small Claims Part in the Civil Court of New York in the evenings and has served on the Board of Trustees of the Greenburgh Hebrew Center as well serving as its President. Jayson attended Union College in Schenectady, New York, where he received his Bachelor’s degree and graduated with honors in 1979. Jayson attended the Benjamin N. Cardozo School of Law at Yeshiva University, New York, and graduated in 1982 with a law degree.