Unmarried Men Have Rights and Responsibilities to their Children on Long Island, NY

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.