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Family Law Attorney Stacy Sabatini, Esq.

News and insights about divorce and family law in New York.

What Happens To Children of Unmarried Parents In New York When They Split?


Most people think that family law is mostly about divorce, child custody, and child support. But in addition, family law also deals with the rights of parents who are not married when their relationship ends.

In a divorce situation, the law presumes that the husband is the father of all the children. Then the family court follows the procedure to decide child custody and child support.

Because there isn’t a formal and legal relationship between the two people, there is no need for a divorce proceeding.


New York does not recognize “common law marriage,” unless that relationship was legally formed in another state that does, such as Texas or Colorado. Child custody, however, is a completely different story.

Do Unmarried Fathers Have Parental Rights In New York?

Not unless they take steps to legally establish those rights. Unlike the mother’s automatic legal custody, an unmarried biological father has no legal relationship to the child, and no legal right to custody or visitations. This is true even if the parents cohabitated for an extended period of time.

Custody can, in fact, be updated. The biological or presumed father wants to be involved or continue to be in the child’s life, or set up visitation. The mother may decide to seek child support through the court system. In either case, both parents can sign an Acknowledgement of Paternity (AOP) form before or after birth to make the presumed parent the legal father. This should only be done as long as there is no question about the child’s paternity.

If the father’s identity is not clear, it’s best to file a Paternity Petition with the court for a paternity determination. The parents and child will undergo genetic testing to determine if the alleged father is also the biological father. Once paternity is determined, the court will issue an Order of Filiation, declaring the child’s father and adding his name to the birth certificate.

Custody And Visitation

Without a divorce proceeding, parents will still have to make the same decisions regarding the care and support of the child or children.

Parents can make these arrangements themselves, voluntarily. However, they aren’t legally binding or enforceable unless they are ratified by the courts. It’s best to work with a family law attorney to begin this process.

The first step for parents is to create a Stipulation of Settlement with the arrangements, then submitted to the family court. There are two parts to the family court—one handles the Petition for Child Custody, the other, child support via an order.

Both parents will be required to appear in court to discuss their parenting plan with the judge, who will incorporate the agreement into the Order of Custody, then signs it. Parents now have a court order on child custody that is enforceable.

Child support is handled separately, after a parent files a Petition for Child Support. The court will issue an order if the parents agree, or after a trial by a support magistrate if they don’t.

The Best Interest Of The Child

The courts want to make sure that both parents are stable and are able to adequately care for the child equally when making decisions and custody arrangements.

In some cases, one of the parents may be unfit or have drug or alcohol problems. There may have been domestic violence or other problems in the home that led to the end of the relationship. In this case, the judge will examine the evidence from both parents to make a decision.

New York’s custody laws are gender-neutral. That is, they don’t necessarily favor the mother over the father. If the mother is deemed an unfit parent, the father can also petition the court to have sole custody of the child, with or without visitation rights.

Experienced Family Law Mediators For New York Families

At the Law Office of Stacy Sabatini, Esq., we provide an array of family law and related legal services to families in Rockland County. To find out more about paternity, child support, custody and visitation orders as well as our other services, please contact our office online by filling out our online form or call (845) 243-0295 today!

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