Child Custody in New York State
Where there are children of the marriage residing in New York State and under the age of 18, a demand for custody is mandatory in divorce actions. Where the children reside outside New York State custody may not be determined, except in some instances by stipulation. Custody may not be awarded to a person other than the father or mother, except under unusual circumstances which require an Inquest. Children under the age of 21 must be supported by both parents.
A child born to the wife during the marriage is the husband's child, as determined by law. This well-settled concept is the "presumption of lawful paternity", and assigns to the husband complete rights, duties and obligations as to the child, regardless of whether he is the biological parent or not. Where the child was conceived by another man, any of the parties may ask the court to determine paternity, based on sworn statements, including but not limited to:
- Access by a man other than the husband, with a description of the circumstances of the child's conception
- Lack of access by the husband during the same time period
- Scientific proof (blood group, HLA marker, etc.) excluding the husband
Generally, hospital records and birth certificate are not sufficient to offset this presumption of lawful paternity. A successful application to the court results in an Order of Filiation, excluding the husband, and assigning paternity to the other man. The biological father now must support the child. Where the biological father is unknown or without financial means, the court may still find the husband responsible for support.
Please remember in calculating the date of conception that the human gestation period is roughly 9 months, less 7-11 days.
A child born to the husband and wife prior to the marriage becomes a child of the marriage when the marriage is performed.