Q. VII.1 What is the process to establish custody?
Q. VII.2 What
is the process to establish paternity?
Q. VII.3 What
is the difference between custody and guardianship?
What are the necessary steps to follow to pursue
legal guardianship?
Q. VII.4 If a
child's mother is under 18 years of age, what are the
mother's rights to her child? In the case above, do
the maternal/paternal grandparents have any rights to
custody/visitation of the child?
Q. VII.5 What
does the term "legally responsible" mean?
What special responsibilities do parents of teenage
mothers/fathers have towards their grandchildren? How
is responsibility divided between grandparent,
teenager, and teenager's child?
Q. VII.6 In a
case where paternity has been decided, but there is
no court ruling on either custody or visitation:
If the mother
has listed the father of the baby as a person who can
pick up the child from its Day Care Center, can she
remove his name from that list? If so, how? Can the
mother's refusal to let the father take the child on
visits be held against her when the court finally
hears the case?
Q. VII.7 Who
has responsibility for determining a father's
financial status, the client or the Support
Enforcement Unit? What legal action is taken against
a father who is not supporting a child? How is this
action enforced? What length of time has to expire
before a legal action for non- payment is taken?
Q. VII.8 What
rights do teen fathers have if they want to establish
paternity and get custody?
Q. VII.9 If a
parent/legal guardian and a child reside in different
states, which state's laws take precedence?
Q. VII.10
Where should one go if they have questions regarding
custody?
Q. VII.1 What
is the process to establish custody?
A. To have
custody of a child means to assume primary
responsibility for a child. Each parent has an
equal right to the custody of his/her child. When
parents are unable to agree, the question of who
gets custody of the child can be brought to the
Family Court. If the situation changes after an
order has been issued, either parent can petition
the court for a change of custody. To obtain
legal custody of a child, a parent must go to
court. In cases where the child's parents are not
living together, it is a good idea for the parent
taking care of the child to establish legal
custody. The issue of child support should also
be addressed in such proceedings.
A
custodian is a person usually appointed by the
court to assume the care of a minor because the
parents or legal guardians have died, are in
prison, mentally ill, have abandoned or deserted
the minor, or are otherwise unable to care for
the child.
Q. VII.2 What
is the process to establish paternity?
A. When
both parties agree on who the father is and the
parties are not married to one another, the
easiest way to establish paternity is through an
Acknowledgement of Paternity. This form can
obtained at the local Social Services office. The
document is then filed in the Putative Father
Registry and the father is legally recognized. If
the parties do not agree, a Paternity Proceeding
can be brought to Family Court. In such cases,
the mother, the putative father or even the child
may file a petition to establish paternity. These
proceedings can be started anytime before a child
is 21. The Clerk at the Family Court should be
able to assist a person who seeks to file a
Petition for Paternity.
Q. VII.3 What
is the difference between custody and guardianship?
What are the necessary steps to follow to pursue
legal guardianship?
A. An
adult may file a petition for the custody or
guardianship of a minor in the Family Court or in
Surrogate's Court. Assistance in filing such a
petition may be obtained by a clerk at the Family
Court or Surrogate's Court in the county where
the minor resides. Once appointed, the legal
guardian or custodial parent is responsible for
the care of the minor. Guardianship and limited
guardianship may also be obtained over an adult
who is incompetent (guardianship over the person
and/or the person's property). A minor may
initiate a custody petition through a person over
the age of 18 who is referred to as a guardian ad
litem. Generally, however, the person seeking
custody of the minor is the petitioner.
Q. VII.4 If a
child's mother is under 18 years of age, what are the
mother's rights to her child? In the case above, do
the maternal/paternal grandparents have any rights to
custody/visitation of the child?
A.
Parents, whether they are minors or adults, have
the right to custody and control of their
children. All parents, regardless of their age,
have a superior right to custody over
non-parents, including grandparents. However, the
Domestic Relations Law and the Family Court Act
provide a mechanism for grandparents to seek
court ordered visitation with their
grandchildren. The court's decision is guided by
the "best interests of the child."
Q. VII.5 What
does the term "legally responsible" mean?
What special responsibilities do parents of teenage
mothers/fathers have towards their grandchildren? How
is responsibility divided between grandparent,
teenager, and teenager's child?
A. See
IV.I and VII.4 for a definition of "legal
responsibility."
Generally,
parents are responsible for the support of their
own children up to age 21. When a minor child
gives birth, that minor child is responsible for
her baby, and the minor's parents remain
responsible for her. However, if the young person
under the age of 18 continues to live at home,
the grandparents' income will be "deemed
available" to the grandchild to determine
eligibility for Temporary Assistance to Needy
Families (TANF).
Q. VII.6 In a
case where paternity has been decided, but there is
no court ruling on either custody or visitation:
If the mother
has listed the father of the baby as a person who can
pick up the child from its Day Care Center, can she
remove his name from that list? If so, how? Can the
mother's refusal to let the father take the child on
visits be held against her when the court finally
hears the case?
A. A
mother can simply remove the father's name or any
one else's from the day care center list. In the
absence of a court order to the contrary, the
decision regarding who may pick up the child
remains with the child's primary caretaker.
Whether this can be held against the mother in a
custody proceeding depends upon the facts of the
case.
Q. VII.7 Who
has responsibility for determining a father's
financial status, the client or the Support
Enforcement Unit? What legal action is taken against
a father who is not supporting a child? How is this
action enforced? What length of time has to expire
before a legal action for non-payment is taken?
A. When a
family is receiving Temporary Assistance to Needy
Families (TANF), the Child Support Enforcement
Unit (CSEU) will seek to determine the father's
financial status. Except in extraordinary
circumstances, mothers are required to provide
the Department of Social Services with the name
of the child's father as a condition of receiving
benefits.
Both parents have a legal duty to support their
children. If a parent does not pay support
voluntarily, a support petition can be filed in
the Family Court. When a father does not pay
child support, the CSEU can help. In most
communities you can locate the local CSEU at the
Family Court. A violation of a Support Order can
result in the revocation of one's driver's
license, confiscation of tax refunds and
imprisonment.
The circumstances of the case and the county in
which the order is issued can affect the amount
of time that elapses before formal action is
taken against a parent who fails to pay court
ordered support.
Q. VII.8 What
rights do teen fathers have if they want to establish
paternity and get custody?
A. Both
parents are presumed to have an equal right to
their child's custody. When a custody case is
brought before the Family Court, the court
decides issues of custody and visitation based
upon "the best interests of the child."
Factors in making that decision may include: Who
the primary caretaker of the child is; who is
better able to care for the child; what personal
issues (positive and negative) may affect the
parent's ability to care for the child -
addiction, employment, housing, etc. In cases
where both parents seek custody and the child's
best interests can be served, the Family Court
may order joint custody.
(For a
discussion of paternity see VII.1)
Q. VII.9 If a
parent/legal guardian and a child reside in different
states, which state's laws take precedence?
A. If a
child whose family lives in another state comes
to New York and seeks the assistance of a
runaway/homeless shelter, his/her parents'
ability to use the courts to force the minor's
return is governed by the law of the state where
the minor resided before leaving home. In New
York, parents may file a petition in Family Court
against their child under the age of 16 who runs
away from home. However, if a child leaves home
in a state where the court has jurisdiction over
runaways over 18, the law of that state will
govern and the child may be summoned to appear in
a New York court for extradition (return) to
his/her home state. In other words, if a minor
comes to New York from a state where a runaway is
considered a person under the age of 19 (rather
than 18 as in New York) that state's law governs
and the minor may be ordered by a court in New
York to return to his/her home state.
Q. VII.10
Where should one go if they have questions regarding
custody?
A. Many
communities offer pro-bono legal services through
Legal Aid, the local Bar Association, or youth
advocacy organizations. If your community does
not offer these services, go to Family Court and
ask the clerk for assistance.
