Rights of a Bastard Child in New York Family Law
Explore how New York family law ensures legal protections and equal rights for children born outside of marriage across key family matters.
Family law in New York has evolved significantly, moving away from outdated distinctions based on whether a child’s parents were married at the time of birth. Current state law focuses on ensuring equal rights and protections for all children by establishing legal parentage, regardless of the parents’ marital status.
Terminology in New York Law
New York has abandoned archaic terms like “illegitimate” or “bastard,” which historically carried social and legal disadvantages. This shift reflects constitutional principles, particularly the Equal Protection Clause, affirmed by U.S. Supreme Court rulings that prohibit discrimination based on the circumstances of birth.
State statutes now use neutral language. The Family Court Act, particularly Article 5 concerning paternity, refers to a “child born out of wedlock,” defined simply as a child born to parents not legally married to each other.1NYSenate.gov. Family Court Act § 512 This term is used consistently when discussing the establishment of parentage for such children.
Other laws reinforce this equality. The Estates, Powers and Trusts Law (EPTL) uses “non-marital child” when addressing inheritance. EPTL Section 4-1.2 automatically grants a non-marital child inheritance rights from the mother. The Domestic Relations Law Section 24 clarifies that children born before their parents marry are considered the “legitimate child of both birth parents” once the marriage occurs, even if the marriage is later invalidated.2FindLaw. New York Domestic Relations Law § 24 The fundamental principle is that a child’s rights depend on a legally established parent-child relationship, not the parents’ marital status.
Paternity Proceedings
Establishing the legal father for a child born outside of marriage is crucial for determining rights and responsibilities like support and custody. This is done through paternity proceedings under Article 5 of the Family Court Act.
Paternity can be established voluntarily or through court action. The most straightforward method is signing an “Acknowledgment of Paternity” (AOP) form, often available at the hospital.3New York State Office of Temporary and Disability Assistance. LDSS-5171 – Acknowledgement of Parentage Form Both parents must sign before witnesses. A properly filed AOP has the force of a court order. A signatory can challenge the AOP in Family Court within 60 days; later challenges require proving fraud, duress, or a significant mistake.
If paternity isn’t acknowledged voluntarily, a petition must be filed in Family Court. This can be done by the mother, a man claiming fatherhood, the child (or a guardian), or social services if the child receives public aid. The court requires formal notification (service) to the person responding to the petition.
When paternity is disputed, the court typically orders genetic (DNA) testing, as outlined in Family Court Act Section 532.4FindLaw. New York Family Court Act § 532 The court advises parties of their right to testing and generally must order it if requested or on its own initiative, unless specific legal reasons prevent it, such as protecting an existing parent-child relationship (equitable estoppel).
DNA test results are highly persuasive. A result showing a 95 percent or higher probability of paternity creates a strong presumption that the man is the father, shifting the burden to him to prove otherwise. The court considers all evidence, including testimony and DNA results. If paternity is proven by “clear and convincing evidence,” the court issues an “Order of Filiation” (Family Court Act Section 542), legally declaring the man as the father.5FindLaw. New York Family Court Act § 542 If not proven, the case is dismissed.
Child Support Factors
Once legal parentage is established, the obligation for financial support arises, governed by the Child Support Standards Act (CSSA), found in both Family Court Act Section 413 and Domestic Relations Law Section 240(1-b). This act ensures children receive support based on their parents’ combined income, regardless of marital status.
The basic support calculation starts with the parents’ combined income, broadly defined to include earnings, benefits, and potentially other resources. Certain deductions, like FICA taxes and support paid for other children, are subtracted to arrive at the adjusted combined parental income.
Statutory percentages are then applied to this combined income up to a set cap ($183,000 as of March 2024).6NYCOURTS.GOV. How to Calculate Child Support in New York The percentages are: 17% for one child, 25% for two, 29% for three, 31% for four, and at least 35% for five or more. The resulting amount is the basic child support obligation, divided between the parents based on their share of the combined income. For income above the cap, the court uses its discretion, either applying the percentages or setting an amount based on statutory factors.
The CSSA also requires parents to share costs for reasonable child care needed for work or education, health insurance premiums for the child, and unreimbursed medical expenses. These “add-on” costs are typically split proportionally based on parental income. Courts may also order contributions for educational expenses like private school or college.
While the CSSA formula yields a presumptive support amount, courts can deviate if that amount is deemed “unjust or inappropriate.” This requires considering factors listed in the law, such as the financial resources of all parties, the child’s needs, the standard of living, tax consequences, and non-monetary contributions. Any deviation must be explained in writing. A “self-support reserve” ($21,128 for 2025) protects the paying parent’s basic needs, potentially leading to adjustments, though a minimum order (usually $25/month) is typically required.
Custody and Visitation
After legal parentage is determined, custody and visitation decisions for children born outside marriage follow the same standards as for children of married parents. New York law, under Domestic Relations Law Sections 70(a) and 240(1)(a), mandates that courts decide based solely on the “best interests of the child.”7NY CourtHelp. Best Interest of the Child Neither parent has an automatic preference.
Courts, primarily Family Court and Supreme Court, establish custody arrangements.8FindLaw. New York Family Court Act § 651 Legal custody involves decision-making rights (education, health care), while physical custody determines the child’s primary residence. These can be awarded solely to one parent or jointly. Joint legal custody is typically ordered only if parents can cooperate effectively.
To determine the child’s best interests, courts examine the “totality of the circumstances.” Factors considered include each parent’s ability to provide a stable home, their health, the history of caregiving, the child’s wishes (depending on age), the child’s adjustment, and each parent’s willingness to support the child’s relationship with the other parent. Domestic violence must be considered if proven. Evidence of substance abuse or neglect can negatively affect a parent’s case.
Visitation, often called “parenting time,” is also based on the child’s best interests. The non-custodial parent usually receives regular parenting time unless contact would harm the child. Courts aim for schedules allowing frequent, meaningful contact. If safety is a concern, supervised visitation or monitored exchanges may be ordered. Denying visitation entirely is rare and reserved for situations posing significant risk to the child.
Inheritance and Estate Rights
When a New Yorker dies without a will, state intestacy laws in the Estates, Powers and Trusts Law (EPTL) dictate how property is distributed. EPTL Section 4-1.2 outlines specific rules for non-marital children.
A non-marital child automatically inherits from their mother and her relatives, just like a child born within marriage, under EPTL Section 4-1.2(a)(1). Establishing the biological relationship is generally sufficient.
Inheriting from the father requires specific proof of paternity according to EPTL Section 4-1.2(a)(2).9FindLaw. New York Estates, Powers and Trusts Law § 4-1.2 A non-marital child can inherit from the father and his relatives only if one of the following conditions is met during the father’s lifetime:
1. A court issued an Order of Filiation declaring paternity.
2. The father signed a valid Acknowledgment of Paternity filed with the appropriate registrar.
3. The father signed a formal written instrument acknowledging paternity, witnessed and notarized like a deed, and filed with the putative father registry within 60 days.
4. Paternity is established after the father’s death by “clear and convincing evidence.” This high standard of proof can be met through DNA test results or evidence that the father “openly and notoriously” acknowledged the child as his own during his lifetime (e.g., publicly recognizing the child, providing support, telling others he was the father).
If paternity is established through one of these methods, the non-marital child has the same inheritance rights from the father and paternal relatives as a marital child under New York’s intestacy laws. Similarly, the father or paternal relatives can only inherit from a deceased non-marital child if paternity was established according to these specific requirements (EPTL Section 4-1.2(b)).
