Matrimonial attorneys have traditionally focused on marriage and divorce rates where they practice, but statistically, marriage rates are changing.  New York State has experienced a significant decline in marriage, accompanied by a corresponding increase in couples choosing to cohabit. According to the U.S. Census Bureau, only 47% of U.S. households were headed by married couples in 2020, down from over 70% in 1970. These shifts have interesting and wide-reaching implications for the legal system as they relate to unmarried partners and their children.

The change in relationship status has far-reaching legal effects, particularly in areas such as estate planning, real estate, and family law, including child custody, visitation and paternity. Recent changes in parents’ relationship status have prompted New York courts, legislators, and practitioners to fine-tune their practices to navigate the evolving relationships and rights of unmarried partners and their children.

Rights of Unmarried Partners

Examining unmarried partners’ rights versus married partners in New York State reveals the law does not favor married fathers over unmarried fathers in custody or visitation decisions. New York Courts use the “best interests of the child” standard to make determinations regarding custody and visitation, with that being  the court’s paramount concern. The best interests of the child standard uses factors such as stability of the home environment, caregiving history, mental and physical health of the parents, and the willingness to foster the child’s relationship with the other parent.

A Cautionary Tale

Adam, a Manhattan architect, arrived home after a long day at the office. Stepping out of his car, he noticed the intense heat from the July weather but was instantly struck by the quiet as he opened his front door. The ritual of his girls running to the front door to greet him, yelling “Daddy’s home,” the dog pouncing on him, and the kisses hello were absent, … there was just a deafening silence. He found the home he shared with his longtime partner, Kayleigh, empty. Their two young daughters were gone.  Every trace of Kayleigh, the girls, and the dog were gone; their clothing, toys, photos, documents, and the car were gone.

Adam and Kayleigh had been together for over 20 years, raising their girls from birth together, and he was there for every moment of the girls’ lives. Adam is educated; he thought he had rights, held himself out as the girls’ father, signed girls’ birth certificates, took the girls to school every day, went to parent-teacher conferences, and was listed in the school handbook as their father. When he went to the New York State Family Court to file for custody and visitation, he discovered he did not have the same rights as a married father. Where did Adam fail? What did he miss? Adam should have (a) signed an acknowledgment of paternity when the girls were first born in the hospital, (b) obtained an order of filiation or (c) entered into an order of custody and visitation. Adam was starting from the beginning.

Unmarried Parents

New York State offers several options for unmarried fathers like Adam to establish paternity. Signing a birth certificate in New York is typically not sufficient to establish legal paternity to obtain Custody in Family Court.  Family Court Act §516-a (a) provides that an acknowledgment of paternity executed pursuant to Social Service Law §111-k or Public Health law §4135-b establishes the paternity of and liability for the support of a child.

At the time of a child’s birth, the unmarried father or other parent (not the parent giving birth) can sign an “Acknowledgment of Paternity,” considered a declaration of paternity, while still in the hospital. The second option is to go to the Family Court and file a petition under Article 5 of the Family Court Act seeking an “Order of Filiation” declaring him to be the father. It is important for unmarried fathers to be counseled to proactively seek and establish paternity as early as possible. Without establishing paternity, a father cannot move forward in Family Court to seek an Order of custody and visitation, as there will be no standing. Once paternity is established, married and unmarried fathers have the same rights.

Parenting Plans

Parents can agree at any time to a formal parenting plan, which demonstrates cooperation and stability. Life changes, and so can the parenting agreement, and modifications can be made if necessary.  The agreement is negotiated outside of court, and once duly executed it is filed in Court to  make it enforceable.

Adam thought he had rights, but without an acknowledgment of paternity or order of filiation, the Court did not have the power to make a determination as to Adam’s custodial rights or visitation in family court. New York case law has held children born during marriage are presumed to be the biological product of the marriage and this presumption has been described as one of the strongest and most persuasive known to the law. New York State puts an extra burden on unmarried fathers to take an additional procedural step and go through legal hurdles to obtain standing to assert those rights. Does the law need to change to ensure the best interests of the child are protected, to reflect our modern society, and the trend of children born out of wedlock? Is legal reform required to protect the rights of unmarried fathers and their children so that families are protected?

In a recent case handed down by Appellate Division Second Department, the petitioner father filed a petition for paternity to establish his rights as the father of the child. At approximately the same time, the petitioner father filed a petition for joint custody and visitation prior to having paternity legally determined. In his petition for custody, the father alleged that he and the child’s mother broke up just before the child was born, and the petition alleged he was the father of the child. In response, the child’s mother moved to dismiss the father’s custody and visitation petition saying the father lacked standing to seek custody of the child, since he was not the “legal father” of the child. The father cross-moved to request a genetic marker test be performed; the mother did not oppose.

The court granted the genetic marker test which revealed he was  the father by a  99.99% probability. The Court issued the Order of Filiation, adjudging him to be the child’s father. Unfortunately, at the same time the Family Court Judge granted the mother’s motion to dismiss the father’s custody petition for lack of standing, because at the time he filed his custody petition, his parentage was not established. In the Matter of Kevin C. V Trisha J ( — N.Y.S.3d.—, (2^nd Dept. 2025), (Slip Op. 03324)), the Court reversed the lower court, explaining “Pursuant to Domestic Relations Law § 70, that parents have standing to seek custody of or parental access with their children.” The custody petition sufficiently alleged that the petitioner was the biological father of the child, and the mother’s affidavits did not expressly deny the petitioner’s paternity, nor offer any facts to refute his allegations of paternity.  Moreover, the Family Court entered the order of filiation on consent, and it is undisputed that the petitioner was adjudicated to be the child’s biological father before, or at the same time that, the court granted the mother’s motion which was to dismiss the custody petition.  Accordingly, the court erred in determining that the petitioner did not have standing to file the custody petition because he had not been adjudicated the biological father of the child before the petition was filed.

Attorney Assistance

How can we help as lawyers? It is wise to counsel unmarried parents to enter into a parenting plan while on good terms, getting along, and things are going well. They can be living together or apart when they reach a parenting agreement which would be similar to a post-nuptial agreement or separation agreement in how it is drafted and executed. The agreement helps couples clarify and formalize their relationship and ensure there is an acknowledgement of paternity and clarify parenting rights and responsibilities and expectations. This can save the couple stress, litigation and uncertainty, and provide children with a sense of security.

The parenting agreement could address issues for raising and parenting children while the couple is together and establish possible legal and physical custody designations if the couple split. The agreement could include a visitation schedule, decision-making regarding school, health care, and religion. Parents could define their expectations regarding financial contributions. The agreement could provide for mediation or counseling in the event of a conflict. Agreements could include possible clauses such as vacation, holidays and activities, and other issues parents decide.

If parents create a parenting plan before problems occur and are calm, it can foster a sense of security and cooperation instead of planning for the worst.

Child custody agreements require a deep understanding of family law, and working with an experienced family law attorney can help make the process smoother and more successful. If you believe it’s time for a child custody agreement, contact us to speak with a New York family law attorney today, or call 8885294543 to explore your options and protect your child’s well-being.

Nancy Nissen, Esq. is a Partner at Tully Rinckey, PLLC’s office in White Plains, New York, where she primarily focuses her practice on family and matrimonial law, with an additional concentration on labor and employment law. Nancy also has experience in Education Law, assisting prior family law clients in the areas of IEP’s, 504 plans, and dealing with grievances for college students.