You are the biological father and have almost every right that a biological father has, including an equal right to custody.
I say "almost every right" because certain rights come with marriage; however, if you are not married, you cannot force the mother
to give the child your last name.
You do not state how amicable your relationship has remained, so let me give you some information while assuming the worst case scenario. If the mother wants to deny that you are the father, you would have to file a Petition for Paternity
, asking the Court to order DNA testing. Even if the mother files a Complaint for Child Support
, I suggest asking for the DNA testing because it would not be the first time a mother received child support, then 10 years later says the other parent is not the biological father.
Once DNA testing is done, you will be standing on more solid ground. You can file a Complaint for Custody and ask for primary physical custody of the child. The standard by which Judges in all 50 states use in deciding custody, is "What will be in the best interests and permanent welfare of the child or children". The Judge will look at each parent, and determine which parent will give the child the most stable, loving, secure home, who will be able to spend the most quality time, give the most nurturing environment and similar qualities. If it is shown that the mother has simply put the child in daycare, leave the child with babysitters, or leave them with grandparents, the Courts prefer to grant custody to the other parent.
It is important in custody cases that the parent seeking primary physical custody show the Court that such parent will allow the other parent partial physical custody (usually weekends). Judges frown upon parents who have primary physical custody who do not encourage a relationship between the child and the other parent.
So, you have just about the same rights as the mother, except for the last name.
I hope this has been helpful
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ANDREA, JD, LLM
Member, NY & PA Bar
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