New York State Divorce and Fathers' Rights

By Cindy Chung

New York divorces often include custody and visitation issues if the spouses have children together. If parents can't agree on custody rights or plan a visitation schedule, the court handling the divorce case may make a court order for custody. A father's rights generally rely on the paternity, custody and divorce laws of the state, and depend on the terms of the divorce.

Paternity Laws

New York paternity laws determine fathers' rights under a variety of circumstances. An unmarried father often must establish himself as the child's legal father, through a voluntary acknowledgment or a paternity case, before he can ask a court for custody and visitation rights. However, New York law presumes that a man married to the mother at the time of a child's birth is the legal father; therefore, the husband generally doesn't need to take further action to establish paternity. A legal father may request custody or visitation rights in a divorce case. If anyone wants to challenge the husband's parental rights, he or she may need to open a paternity case and offer DNA evidence that he is not the child's father before the court can take away the husband's rights as the child's father.

Court Proceedings

A legal father who has paternity rights may request custody or visitation in a New York court. Two types of state courts decide custody issues in the state, and the father should start court proceedings in the appropriate court. In general, New York Supreme Courts hear divorce cases and the custody issues that arise during those cases. However, the New York Family Court oversees custody and visitation disputes between unmarried parents or married parents who haven't decided to divorce. In a divorce, parents must decide residential custody, establishing where the child will live most of the time; and legal custody, which determines whether one or both parents can make major decisions for the child, such as decisions about education, health care, and religious training. Parents can negotiate an agreement on their own or with the help of mediation services, and the court will determine whether to approve the agreement. If they can't agree, the court will decide for the parents as part of the divorce.

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Parent's Gender

In a divorce pending between a man and a woman, the father might worry that the New York Supreme Court may favor the child's mother when making court orders regarding custody and visitation. However, the court may not prefer either parent simply because of that parent's gender. The court must consider each family's circumstances and make a custody and visitation decision seeking the best possible outcome for the child. Similarly, in a divorce between same-sex spouses, the court must carefully consider the best option for the child rather than make any assumptions or favor either parent.

Custody and Visitation Factors

When parents can't reach an agreement and the New York Supreme Court must issue child custody and visitation orders in the divorce, the court must consider many factors before making a decision. A father should review the custody factors and identify the ones that are most relevant to his situation. For example, a father may need to demonstrate his relationship with the child and his willingness to cooperate with the other parent after the divorce. The father should tell the court if he has served as the child's primary caregiver. In addition, the court may consider other factors, such as each parent's health, age and employment obligations. After reviewing the factors, the court must decide whether the parents will share legal custody and choose the parent who will have residential custody.

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