There are three ways to establish paternity:

1. If the parents are married at the time the child is born, they are both automatically considered legal parents. You do not have to establish paternity in court.
2. If the father signs an acknowledgment of paternity after the child is born, he has established paternity. The acknowledgment of paternity is a form that unmarried parents sign saying who the child’s father is. The parents usually sign the form at the hospital when the child is born.
3. You may file a petition (pe-TI-shun) for paternity in Family Court. A petition is a written request. Both parents appear before a judge or magistrate. The parents can agree that the person present is the father. If the parents do not agree, the judge may order a DNA test. If the DNA test comes back as at least 95% positive, the court will enter an order of filiation (fil-eeAY-shun). An order of filiation is an official document stating that a person is the father of a child

For more information on paternity, see the LIFT guide “Fathers in Family Court: Paternity & More.”

No. People who are incarcerated still have rights in court. One important right is the right to be served. Being served means receiving a copy of the court papers so that you know a case was filed against you. The court has strict rules about how to serve court papers. You must be served every time there is a Family Court case about you or your child. This is true even when you are incarcerated. For more information, see the LIFT guide “Serving Court Papers.” 

People who are incarcerated also have the right to appear in court for their cases. You can ask the court to appear by phone or through video. To do this, you must fill out a form called "Electronic Testimony Application and Waiver of Personal Appearance." 

You may file a motion to vacate (VAY-kayt) the default order. This is a written request asking the court to cancel the order. This motion must also have an affidavit (aff-i-DAYV-it). An affidavit is a written sworn statement. It must be signed and notarized. In the affidavit, you can explain why you missed court. You can also explain how the order would have been different if you were there to give information about your income. You must file the motion at the same Family Court that issued the default order. Contact that court for the forms and instructions.

On your court date, you have to prove what is in your motion and affidavit. The court will decide whether to put the case back on the calendar. Also bring proof of your income and expenses. The court needs this information to make an accurate child support order.

Maybe. The court could order you to go to jail for up to six months or put you on probation if it finds that you willfully violated the support order. Willfully violating a support order means not following the order on purpose. For example, the court may find a willful violation if you had enough money to pay the child support but chose not to pay. Or, the court may find a willful violation if you can work but did not try to find a job. The court must have a willfulness hearing to find out why you did not pay child support.

You have a right to a lawyer for the willfulness hearing. If you cannot afford a lawyer, the court can appoint, or assign, one to you for free.

This depends on whom the arrears are owed to.

• If you owe arrears to the custodial caregiver, only the custodial caregiver can forgive these arrears. This is true even if the payments go through OCSS or SCU. If the custodial caregiver agrees to forgive arrears, you still need to go to court. Both of you must agree to this in front of the support magistrate. 
• If you owe arrears to the Department of Social Services (DSS) in New York City, you may qualify for one of the arrears forgiveness programs offered by OCSS. You may owe arrears to New York City’s DSS if the custodial caregiver lives there and receives public assistance for your child. More information on the programs is below. 

You may owe arrears to the public assistance agency in your child’s county or state. Contact that agency to see if they offer arrears forgiveness programs.

The court will not automatically lower your child support. If your income goes down or you have a change in circumstances, it is your responsibility to file a petition for a downward modification in Family Court. This is a written request asking the court to lower your child support payments.

Modifying your child support order will not reduce arrears that built up before you filed the petition. The court can only lower the child support starting from the date you filed the petition for modification.

For more information, see LIFT’s guide “Modifying Your Child Support Order.”

This depends on why you do not have a job. If you cannot work because you have a disability, you must show proof of your disability. Examples might be a Social Security Disability Insurance (SSDI) award letter or certified medical records. The court will decide whether you showed enough proof. If so, the court can calculate child support based on income you do have. Examples of income are disability benefits and veterans’ benefits. Supplemental Security Income, or SSI, does not count as income in child support calculations. If your income is below the federal poverty line, you can ask the court to set child support at $25 per month. You can also ask the court to cap your arrears at $500.

 If you cannot find a job for some other reason, the court can order you to pay child support based on what your income would be if you were working. This is called imputing income. To impute your income, the court can consider: 

• What you earned in the past;
• The minimum wage where you live;
• Your education or skills; and
• Any other information the court believes is important. 

If you are having trouble finding a job because of your criminal conviction, the court can still impute your income until you find a job.

If the court does not have enough information to impute your income, the court could base the order on your child’s needs. The court looks at the custodial caregiver’s expenses to determine the child’s needs.

The court may ask you to bring in a job search diary. To make a job search diary, write down every job you apply for, the date you applied, and what happened with your application. This helps the court see that you are applying to jobs and trying to find work.

A parent’s rights to their child are not terminated automatically because of incarceration. There are only two ways a parent’s rights can be terminated:

• Voluntarily: A parent can agree to surrender, or give up, their parental rights if someone else wants to adopt their child. Generally, both birth parents need to agree to the adoption.
• Involuntarily: A child welfare agency or foster care agency can file a petition to terminate parental rights if they believe a parent has abused or neglected their child. A judge will decide whether to terminate the parent’s rights. New York City’s child welfare agency is called the Administration for Children’s Services (ACS). Other parts of New York have Child Protective Services (CPS).

As long as your parental rights were not terminated, you may ask the court for custody or visitation again.

You may file a petition for custody or visitation. Generally, you must file in the county where your child has lived for the past six months. The court may consider how long you and your child have been apart, how visits would affect your child, and what your child wants. The court might start by granting a small amount of visitation in a place where your child feels safe and comfortable. 

It depends on which court issued the order of protection and what the order of protection says.

• If the order of protection is from Criminal Court and includes your child: Some Criminal Court orders of protection have an exception that allows parents to file for visitation in Family Court. You must ask the Criminal Court judge to include the exception. You cannot visit your child until you get a Family Court order for visitation.
• If the order of protection is from Family Court and includes your child: You may file a petition for visitation in Family Court. Usually the same judge who made the order of protection will decide visitation too. The judge can create an exception in the order of protection to allow you to visit your child. The judge will determine what is in your child’s best interests when deciding whether to allow visitation. You cannot visit your child until you get a visitation order.
• If the custodial caregiver has an order of protection against you, but it does not include your child: You may still be able to see your child. However, you must follow the rules in the order of protection. You may need to file a petition for visitation in Family Court. The judge can tell you how to visit your child without violating the order of protection. For example, the judge might order pick-ups and drop-offs to take place at a police precinct or another public place. Or the judge might say that you can talk to your child’s custodial caregiver about visitation but not about anything else.

Maybe. First, you need to find out where your child lives. This is so you can decide which court to go to. In general, you must file for custody or visitation in the county where your child has lived for the past six months. 

You also need to serve your child’s custodial caregiver with the court papers. Serving means having someone give the respondent (re-SPON-dent) the court papers. The respondent is the person on the other side of a court case. In custody and visitation cases, the court papers must be handed directly to the respondent. This is called personal service. 

It is your responsibility to find the respondent. The court cannot help you find someone. The court also cannot make any decisions about custody or visitation until you serve the respondent. For more information about service, see the LIFT guide “Serving Court Papers.”

Mediation (mee-dee-AY-shun) is one way to resolve disputes without going to court. Some organizations offer free mediation for custody, visitation, and child support. In mediation, you and the other parent or caregiver meet with a trained, neutral person. That person helps you talk about your disagreements and find solutions together. Mediation gives you the chance to discuss all issues affecting your child, not just legal ones. Although the mediator guides your discussion, they do not tell you what to do like a judge would. They also cannot give you advice. You and the other party make all the decisions. 

If you reach an agreement, you can file it with the Family Court. A judge can turn the agreement into a court order. This means that everyone who signed the agreement must follow it. This process is much faster and simpler than a regular court case.

Mediation may not be a good option if there is a history of domestic violence between the parties. Some mediators may not provide services if there was domestic violence. Also, mediation is voluntary and confidential. You do not have to go if you do not want to. You can still start a case in Family Court if mediation does not work.