Empire State Coalition's Logo


Legal Issues

Section VII
CUSTODY, GUARDIANSHIP, PATERNITY
AND CHILD SUPPORT

Legal Issues Project

Upcoming Events

Become A Member

Contact Us

Newsletter

Home Page


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.

Empire State Coalition
P.O. Box 25312
Brooklyn, NY 11202-5312
Phone: (718) 237-2722

Email: info@EmpireStateCoalition.org



Copyright 2009 All Rights Reserved