Contemporary New York law mandates equal treatment for all children, irrespective of their parents’ marital status at birth. For unmarried parents and their children, understanding how these principles apply to financial support, parental rights, and inheritance is important. This article outlines how New York addresses these situations.
Paternity Proceedings
Establishing legal parentage is the foundational step in defining the relationship between a child born outside marriage and their parents, particularly the father. The New York State Office of Temporary and Disability Assistance, through its child support program, also offers resources for establishing paternity.
A straightforward method is the voluntary Acknowledgment of Paternity (AOP). Unmarried parents can sign this legal form, often at the hospital of birth or later through a local child support enforcement unit or registrar of vital statistics. Both parents must sign it before a notary for the AOP to be valid. This document carries the same legal weight as a court order of filiation. Before signing, parents receive written information about their rights and the implications of the acknowledgment. An AOP can be rescinded by petitioning the court within 60 days of signing or by the date of the first relevant court hearing.1FindLaw. New York Family Court Act § 516-a: Acknowledgment of Paternity and Rescission After this period, the AOP can only be challenged in court based on fraud, duress, or a material mistake of fact.
If parentage is not voluntarily acknowledged or is disputed, a paternity petition can be filed in Family Court to obtain an Order of Filiation. This petition may be initiated by the mother, a man claiming to be the father, the child, the child’s guardian, or a social services official if the child receives public assistance. Such proceedings can start during the mother’s pregnancy or after the child’s birth, but not after the child turns twenty-one, unless the father has previously acknowledged paternity in writing or by providing support.2FindLaw. New York Family Court Act § 517: Time Limits for Paternity Proceedings
Following a petition, the court can order genetic marker or DNA tests. If test results indicate a 99% or higher probability of paternity, a rebuttable presumption of paternity is established.3FindLaw. New York Family Court Act § 532: Genetic Marker and DNA Test Admissibility The court then conducts a hearing, considers all evidence including test results, and if paternity is confirmed, issues an Order of Filiation, legally establishing parentage.
Child Support Eligibility
Once legal parentage is established, the financial responsibilities for the child are addressed. In New York, both parents are legally obligated to support their child, regardless of marital status or living arrangements. The New York State Child Support Program, administered by the Office of Temporary and Disability Assistance (OTDA), assists parents in securing financial and medical support.
Child support calculations are guided by the principle that children should benefit from the income and living standards of both parents. The Child Support Standards Act (CSSA) provides the formula, applying a percentage to the parents’ combined income up to a statutory cap, $183,000 as of March 1, 2024.4New York State Child Support Program. Child Support Standards Chart (LDSS-4515) Including Income Cap For income exceeding this cap, the court determines the support amount based on statutory factors or may apply the standard percentages. These are:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- No less than 35% for five or more children
A child is eligible for support until age 21.5Justia Law. New York Domestic Relations Law § 240: Custody and Child Support Obligations Including Duration Support may extend if a child is still in high school, continuing until graduation or age 21, whichever comes first. Parents can also agree to prolong support, often for higher education or for children with special needs, through a court-approved agreement. Support obligations may end before age 21 if a child is considered emancipated, for instance, due to marriage, military service, or becoming self-sufficient. This determination is made by the court on a case-by-case basis.
Custody and Visitation Orders
After addressing financial support, arrangements for a child’s care and time with each parent are determined through custody and visitation orders. For unmarried parents, establishing paternity is a necessary step before the court can issue formal orders regarding decision-making authority and the child’s primary residence. New York law empowers the court to make these decisions, with the best interests of the child as the paramount consideration.
Parents seeking court orders for custody and visitation petition the Family Court. The court evaluates various factors to determine the child’s best interests, without automatic preference for either parent based on gender or marital status. Factors considered can include:
- The home environment each parent can offer
- The quality of parental guidance
- Each parent’s financial capacity and stability
- The physical and mental health of each parent
- The child’s preferences, considering age and maturity
- Which parent has been the primary caregiver
- Each parent’s willingness to support the child’s relationship with the other parent
- Any history of domestic violence
Custody in New York has two main components: legal custody, which is the right to make significant decisions about the child’s upbringing (e.g., education, healthcare, religion), and physical custody, which determines the child’s primary residence. Courts can award sole custody to one parent or joint custody, where both parents share decision-making or the child spends substantial time with both.
Visitation, often called parenting time, is granted to the non-custodial parent to ensure the child maintains a relationship with both parents. A visitation schedule outlines specific times, including weekdays, weekends, holidays, and vacations, aiming for consistency and practicality. If concerns exist about a child’s safety, the court might order supervised visitation. An Attorney for the Child may be appointed in contested cases to represent the child’s interests.6FindLaw. New York Family Court Act § 249: Appointment of Attorney for the Child Existing orders can be modified if there is a significant change in circumstances and the modification serves the child’s best interests.
Inheritance Rights
When a person dies without a will (intestate), New York’s Estates, Powers and Trusts Law (EPTL) Section 4-1.2 dictates how their property is distributed. For a child born outside marriage, the ability to inherit, particularly from their father, depends on the legal establishment of parentage.
A child born outside marriage is always considered the legitimate child of their mother for inheritance purposes and can inherit from her and her relatives. Complications arise with inheritance from an intestate father. For such a child to inherit, paternity must be established according to criteria in EPTL Section 4-1.2.7NYSenate.gov. Estates, Powers and Trusts Law § 4-1.2: Inheritance by Non-Marital Children This can be achieved if:
- A court issued an Order of Filiation declaring paternity during the father’s lifetime.
- The father and mother executed an Acknowledgment of Paternity that was properly filed.
- The father signed a qualifying instrument acknowledging paternity.
- Paternity is proven by clear and convincing evidence, which can include genetic marker (DNA) test results or evidence that the father openly and notoriously acknowledged the child as his own during his lifetime. This latter standard involves examining the father’s conduct, such as public statements, financial support, or inclusion of his name on the birth certificate. An agreement by the father to support the child, by itself, is not sufficient without a formal Order of Filiation or a valid Acknowledgment of Paternity.
If a child’s parents marry after the child’s birth, this can simplify the establishment of paternal inheritance rights.
Regarding adopted children, an adoption order severs the child’s right to inherit from their birth parents, granting full inheritance rights from and through their adoptive parents.
Official Documentation
A child’s birth certificate is the primary official document defining parentage. New York Public Health Law mandates that birth certificates make no specific statement about whether a child was born in or out of wedlock, or regarding the mother’s marital status.
When a child is born to unmarried parents, the father’s or second parent’s name can be included on the initial birth certificate if both parents sign an Acknowledgment of Paternity (AOP). This document is often available at the hospital and is filed with the registrar of vital statistics.
If an AOP was not completed at birth, or if parentage is established later through a court-issued Order of Filiation, the birth certificate can be amended. The New York State Department of Health, or the New York City Department of Health and Mental Hygiene for city births, handles these amendments. An Order of Filiation legally declares parentage, and upon its issuance, the court clerk transmits the information to the relevant health department for the birth certificate to be updated. If parents marry after a child’s birth, this event can serve as a basis for amending the birth certificate to include the father’s name, requiring the marriage certificate and parental affidavits.
Correcting other information on a birth certificate, such as a name spelling or date of birth, requires an application and supporting evidence submitted to the Department of Health. Obtaining certified copies of the new or amended certificate incurs a fee.8New York State Department of Health. Birth Certificates: Fees and Ordering Information Certified copies are available to the person named on the certificate (if 18 or older), their parents, or a lawful representative, with proper identification. Birth records are confidential and not subject to public inspection.9New York Public Law. Public Health Law § 4138: Birth Certificate Contents and Confidentiality
Government Assistance
Various New York State government assistance programs support families, including those with children born to unmarried parents, by helping meet basic needs. Eligibility often hinges on income, household size, and residency, not parental marital status. The Office of Temporary and Disability Assistance (OTDA) oversees many of these supports.
Financial aid is available through Temporary Assistance (TA), which provides temporary cash benefits to eligible needy families to cover essential living expenses. Cooperation with child support enforcement, including efforts to establish paternity and identify the non-custodial parent, is a condition of TA eligibility for families with an absent parent.10Justia US Law. NYCRR Title 18 § 347.5: Cooperation Requirements for Public Assistance and Child Support
Nutritional support includes the Supplemental Nutrition Assistance Program (SNAP), helping low-income households purchase food via an Electronic Benefit Transfer (EBT) card. The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), administered by the New York State Department of Health, offers specific food items, nutrition education, and breastfeeding support to pregnant women, new mothers, and young children at nutritional risk.
Healthcare coverage is provided through Medicaid for low-income individuals and families, and Child Health Plus for children not eligible for Medicaid. These programs offer free or low-cost health insurance based on household income. Housing assistance, such as public housing or rental subsidies, aims to help low-income families secure affordable housing. The New York State Homes and Community Renewal agency oversees various housing initiatives.