by Robert E. Hornberger, Esq | May 30, 2013
Mother’s Don’t Always Get Custody in Nassau County & Suffolk County Court
As Divorce and Family Law Attorney practicing primarily in Nassau and Suffolk Counties on Long Island, New York, I meet many fathers who suffer from the common misapprehension that the mother always gets custody. This is simply not the case. The court takes the following into consideration when deciding custody of the child:
- The best interest of the child or children;
- Who was the nurturing parent;
- Who has been the primary caretaker of the child;
- Does the child have a preference between the parents as to who he or she wishes to live with;
- Each of the parents’ ability to provide for the child’s needs;
- The child’s age and current lifestyle;
- Whether there is an emotional bond between the child or children and the parent;
- The stability of each of the parents of the child;
- The father’s and the mother’s ability to spend time with the children (this takes into consideration employment and other issues that would keep each of the parents away from the child);
- Both the child and the parent’s physical capabilities and mental health (this deals with issues involving either the child or parent having a disability);
- Is there any history of child abuse or domestic violence between the parents?
What’s in the Best Interest of the Child
The court ultimately will decide what is best for the child. A father is just as capable of obtaining custody of a child as a mother is, however, regardless of who is awarded custody, courts usually prefer for parents to have liberal access to their children.
Not only should the father have access to his children, but also he should have access to the child’s teachers, doctors and other medical providers. In addition, the father has the right to attend school functions, have access to his child’s grades, and should be allowed to attend sporting events their child is playing in. He may also have input in the religious and social upbringing of the children.
See this page to learn everything you need to know about Child Custody and Visitation on Long Island.
Check out our Divorce Guide for Dads for more information about divorce issues specifically related to fathers.
Contact Us for More Information
If you have any questions regarding a Father’s Rights in Child Custody or Support cases, give us a call at 631-923-1910. The divorce law office of Robert E. Hornberger, P.C. will be pleased to offer you a free complimentary consultation to discuss your options. We are here to help you.
by Robert E. Hornberger, Esq | Jan 23, 2013
Know Your Rights & Responsibilities as an Unmarried Father
It is a fact of life and a sign of the times that many Long Island couples live together before they enter into a marriage contract. In these cases, and others, it is not uncommon for a couple to have a child together out of wedlock. While this does not carry the same stigma today as it did in years past, as a Long Island Family Law Lawyer I can tell you that it does raise some interesting legal issues for the fathers of these children that the courts in New York have addressed.
Biological Fathers Have Rights
It has been established by the New York State Court System that the legal or biological father can petition the courts for legal custody/visitation of their child whether or not the couple is married. The support rights will be awarded to the father upon proof of paternity. If paternity is established, the father is then legally obligated to financially support the child until the age of 21.
The Father Must Be Involved
Unmarried fathers are entitled to a hearing before the child is removed/adopted but they must be actively involved in that child’s care and upbringing. This means that the father must act like a real father and must do so timely.
Married Fathers Legal Status Can Be Challenged
In the case of a married couple, the husband enjoys the presumption of legitimacy. When a child is born into the marriage, the husband is presumed to be the child’s legal father. However, this can be rebutted by a paternity test, evidence of physical impossibility, or non-access to the mother. Husbands can be stopped from denying that they are the father or stopped from challenging that they are the father.
Establishing Paternity
Paternity can be established in many different ways. In the simplest case, a father can voluntarily acknowledge the child. This establishes paternity and liability for child support and no further judicial proceedings are required.
A Motion to Vacate is a request to the court to withdraw a previous order or judgment it entered. A petition to vacate may be filed within 60 days of the signing. However, after 60 days, the burden to move for vacating the voluntary acknowledgment becomes higher and must be proven by fraud, duress, or material mistake of fact.
Who Can Seek Paternity?
In New York, paternity may be sought by many different parties:
- the mother
- the child
- the child’s guardian
- the putative father
- (you cannot bring the suit if you want to prove that you are not the father)
- public welfare official
- (if the mother is likely to become a public charge).
The Child’s Best Interest Rules
The courts in New York have said that standing is discretionary, determined by the best interest of the child. The courts have further said that an underage child has standing. The statute of limitations is 21 years from birth, unless paternity is acknowledged by the father in writing or by providing support. Upon motion, the court can order the mother, her child, and the alleged father to submit to blood or DNA tests. A 95 percent probability of paternity creates a rebuttable presumption of paternity.
Seek Experienced Legal Counsel
If you have questions regarding your rights as a non-marital father of a child, you should seek experienced legal counsel immediately. The Family Law Firm of Robert E. Hornberger will be happy to schedule a free, no-obligation consultation with you to discuss your case. You can contact us at 631-923-1910 or fill out the form on this page.
