In cases where the children’s parents are not married legal custody of the children can only be granted by the Family Court in the State of New York. In situations where the children are living with the mother sometimes the mother thinks she has legal custody. Unfortunately, if the children visit with the father and he refuses to return the children the mother has no legal right to force the father to return the children to her. In many cases our law office has been involved in, the mother has called the police and said: “I have custody of the children.” The police will then ask the mother for a court order giving her custody. When the mother tells the police – well I don’t have a formal order but the children have always lived with me, the police will usually respond: unfortunately, unless you have a court order there is no action we can take to help you.
Fathers who want custody of their children must prove paternity. Mothers have no difficulty or need to do this. They know who carried the child for 9 months. Unfortunately, today some mothers still believe since the mother carried the child, and gave birth to the child, she automatically becomes the residential custodial parent. This is simply not true.
Court Proceeding for Custody
Mothers who want to have custody of their children must bring a case in the Family Court seeking custody. A petition is filed in the Family Court and served upon the father. Thereafter the mother appears in court and provides evidence to the judge she has been taking care of the children and it is in the children’s best interest she be given legal custody of the children. It should be pointed out even if the mother retains custody of the children it is the custodial parent’s obligation to promote a relationship between the children and the non-residential custodial parent. Both parents who have children out of wedlock and married parents need to obtain a court order to obtain custody. Married parents can bring a divorce case in Supreme Court or a custody case in Family Court. Unmarried parents can only bring custody cases in Family Court.