Unmarried Mothers' Rights in New York State
By Claire Gillespie
Updated October 15, 2018
In the state of New York, child custody laws exist to protect the best interests of the child, as well as the legal rights of both parents. Unmarried parents have many of the same automatic rights as married parents, which means they can apply to court for custody, visitation and child support. However, paternity may be more of an issue for unmarried parents than married parents.
Establishing Paternity in New York
Determining the mother of a child is generally not an issue – these are automatically established when she gives birth to the child – but paternity may be disputed by the parties. Normally, proof of paternity is via an Acknowledgement of Paternity form, which is voluntarily signed by both parents. This form should not be signed if either party has any doubts about the child's paternity. If this is the case, the court can be petitioned to determine paternity. The court will order genetic testing to establish paternity and if the man is proven to be the child's biological father, an order of filiation confirming his status as the legal father is issued.
Unmarried Mothers' Custody Rights in New York
Under the law relating to custody, there should be no difference between unmarried mothers' rights and unmarried fathers' rights in New York State. They have the same rights as married mothers and fathers. Either party can file a petition for custody, and the court should make its decision based on the best interests of the child, without giving preference to either party based on gender. The court takes many factors into account, including each parent’s mental health and physical wellbeing, each parent’s ability to care for the child, any history of domestic violence in the family, the parents’ work schedules and the child’s wishes (depending on the age of the child).
In New York, there are two types of child custody: legal custody and physical custody. Legal custody of a child concerns all the important decisions in the child's life, such as those regarding education, health care and religion. Parents often share legal custody, which means they try to come to a decision together (although one parent may have the final say).
Physical custody means a child lives with a parent. Again, parents may share physical custody. In many cases, the child lives with one parent during the week and the other parent during the weekend.
When one parent has a type of custody it is called sole custody, and when parents share a type of custody, it is known as joint custody.
Child Support for Unmarried Mothers
If paternity of a child is established (either by an Acknowledgement of Paternity form or an order of filiation) the laws relating to child support are the same whether the parents were married or not. Under New York State law, both parents are responsible for meeting their child's financial needs until the child reaches the age of 21. If the parties cannot reach an agreement on child support between themselves, child support can be ordered by filing a support petition.
New York uses the income shares model to award child support. This is based on the idea that children should receive the same proportion of parental income they would have received had their parents remained together. Both parents' incomes are taken into account, and the percentages are the same regardless of the level of income. These percentages are 17 percent of the combined parental income for one child, 25 percent of the combined parental income for two children, 29 percent of the combined parental income for three children, 31 percent of the combined parental income for four children, and no less than 35 percent of the combined parental income for five children.
- The New York State Senate: The Laws of New York Consolidated Laws Domestic Relations Article 5: The Custody and Wages of Children Section 70
- The Laws of New York Consolidated Laws Domestic Relations Article 5: The Custody and Wages of Children Section 71
- FindLaw: New York Consolidated Laws, Family Court Act - FCT § 413. Parents' Duty to Support Child
Claire Gillespie writes about health, science, home and parenting. She has bylines on SELF, SheKnows, The Washington Post, Vice and more.