Does child custody work differently for unmarried and divorced parents?

One of the greatest concerns for parents during a split-up is dealing with custody and visitation issues, whether they are married or not. Just as divorcing couples must find a solution that the court will approve that is in the best interests of the child, so too must unmarried couples navigate a parenting plan that will satisfy these requirements.

In New York, unmarried parents have quite a few of the same rights as married parents, including rights to support, visitation and custody. What makes things more complicated, however, is establishing paternity and the process for bringing the child into court to establish or enforce a court order.

Custody and visitation laws for unmarried couples in New York

Just as in most states, an unwed mother automatically has sole physical custody in New York, and the father cannot seek parental rights until paternity is established. The father may either sign a voluntary Acknowledgement of Paternity form, or the court, upon petition, will order genetic testing to establish paternity. Once this step is complete, the father has a legal parental status.

When seeking custodial or visitation rights, the process for court involvement requires a request by either parent for a writ of habeas corpus to bring the child in for the purpose of determining custody and guardianship. The judge can then decide what is best for the child and either make or enforce an order for physical custody.

The best interests of the child

Just as with divorcing couples, unwed parents must face a judge who will determine custody and visitation arrangements based on what is in the best interest of the child. In New York, these factors include:

• Which parent is the main caregiver.
• Mental and physical health of both parents.
• Parenting skills of both parties and ability to provide for the child’s needs
• Each parent’s capacity to cooperate and encourage a relationship with the other parent.
• The child’s wishes, if of the age of maturity.
• Any evidence of domestic violence or substance abuse.

When making a decision, the judge will consider the child’s health and safety above all else. Having said this, New York’s custody laws also protect the rights of both parents, even if they are not married. For residents of Kingston and throughout Ulster County, it can help to get more information on the process and how to advocate for your parental rights.