Despite our very lax moral standards today, married parents are still treated differently from  never married parents in Family Court, Supreme Court and Criminal Court in New York, based on traditional values.  Depending on whom you ask, the distinction can be viewed as beneficial in outcome to either parent and favorable with respect to treatment by the courts. 

         Of course divorce only applies to married individuals so that is the only way any other related issues arising out of the marriage can be heard in Supreme Court.  Although once the parties are actually divorced, child support, alimony (maintenance), property distribution may be heard in Supreme Court.  However, there are limits to this, where a violation , contempt or modification of some property issue, arising out of the divorce judgment, is part of the application to that court and where the divorce judgment specifically states that the Supreme Court has “exclusive” jurisdiction.  Otherwise, the issues of child support, child custody/visitation will be heard in Family Court once the parties are no longer married.

         In paternity cases, there is a “presumption of legitimacy” which is the assumption that a child born out of a legal marriage is a child of the parties.  This presumption can be rebutted by either party but may be difficult if there is no other identifiable person conceding paternity.  Particularly for child support, a father’s claim that he is not the father, despite the fact that the parties were married at the time of conception, will not automatically absolve the father of his obligation to support the child.  The courts can deny his application based on the theory of “estoppel“.

         In child support cases paternity must be established before the petition can be heard by the court.  However, again where the parties are married or were married at the time of conception, the court will assume that the husband is the father.  Also, with respect to married parties where only the mother is the biological parent, the stepparent may be obligated to pay child support if he has been providing support for the child during the marriage.  This would not be the case if the parties were just living together, a paramour has no financial obligation to the child of his partner even if he has done so in the past.

         Spousal support may be requested in Family Court when the parties are married.   If there is a divorce pending however, the court will try to direct the parties to address this issue in Supreme Court as part of the divorce. 

         In child custody or visitation cases, the fact that the parties were married, assuming they lived together, will help the court to determine the relationship between the parents and child, the involvement of both parents with the child, the environment maintained with both parents being present, the standard of living enjoyed by the child with both parents in the home-amongst a host of other factors.  Since married parties are viewed as much more focused and able to provide a stable environment, they are given the benefit of starting out of level playing field.  This however, is not the case when there is a history of domestic violence or child abuse.  There is no distinction where parties are or were married but one of the parents is the stepparent.  Stepparents have no rights to petition for custody or visitation of their stepchild.

         In adoption proceedings, again if the parties were married or are married, he must consent to terminate or surrender his legal rights.   And unlike cases where the father has abandoned the child, a father that was married to the mother at the time of conception must be put on notice and given the opportunity to consent or object.

          In guardianships, where the parties are married but one is the biological parent, the other being the stepparent and the other biological parent is deceased the stepparent may petition for guardianship only.  While if the parties were not married, the stepparent would have no “standing” to petition the court for either custody or guardianship since the child has one biological parent still living.

         In name change cases, if the child was conceived out of a legal marriage, the court will not permit the changing of the child’s name if the other parent does not consent.  Particularly where the mother wants to change the child’s name from the father’s name to someone else’s name, the court will require a showing of being in the child’s best interest.  There are exceptions, for instance in cases of domestic violence or child abuse/neglect.  A child born out of a legal marriage will more than likely have his fahter’s name (even if the child is not biologically his), whereas non-married parents must sign an Acknowledgement of Paternity to have the father’s name or add his name  to the birth certificate or to be considered the “putative” father.  The former will negate the need for the court to establish paternity in child support or child custody matters, while the latter will not.

        In juvenile delinquency or PINS cases, an integral part of the court process is the investigation conducted by the Department of Probation.  Their job is to assess the child’s home environment, academics and psychological/emotional issues involved with the family.  Again, the fact that the parents are or were married gives the court the impression that there is or was stability in the home and will use this to determine what the disposition should be if the case actually makes it to this stage.

          In domestic violence situations, an order of protection may be filed in Family Court where the parties are related by blood, consangjity or marriage or has a child in common.  However, where the parties are married and order of protection may be obtained in Supreme Court as part of a divorce action.

          Procedurally, there is no need for registering with the Putative Father Registry if you were married to the mother at the time of conception.  This registry serves the purpose of putting the non-married father (where paternity has not been established) on notice of the child being the subject of adoption, termination of parental rights and/or foster care.

         Filing any type of petition in Family Court will require a copy of the divorce judgment where the parties were married.  The court will request the status of the marriage if there is no divorce.

Feel free to contact my office to discuss your family law matters.