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Father vs. Dad: When a Step-Dad may be Granted Custody after Mom’s Death

Massachusetts divorce lawyer Nicole K. Levy reviews a case in which a Probate and Family Court judge granted custody of a child to a step-dad – instead of the biological father – after the child’s mother died.

In Massachusetts, a biological parent is not guaranteed custody or parental rights over his or her child, where custody determinations require an examination of the specific needs of each child, and judges sometimes determine that non-parents represent better caretakers than the child’s biological parent or parents. To be clear, Massachusetts custody laws are heavily weighted in favor of biological parents, and custody typically belongs to at least one of child’s biological parent. This changes, however, if the parent is declared unfit by a court. Findings of unfitness tend to be very particularized; that is to say, they are highly fact-specific depending on the individual children, biological parents and non-parent guardians involved. A court’s finding that a parent is unfit to raise one child does not necessarily mean the parent is unfit to raise another child. Courts analyzes each child’s specific needs, history and situation.

Table of Contents for this Blog

  • Appeals Court: Stepfather Better Parent than Biological Father after Mother’s Death
  • Parental Fitness Depends on the Particular Needs of the Child and History of the Parent-Child Relationship

Appeals Court: Stepfather Better Parent than Biological Father after Mother’s Death

In CP v. RS, 81 Mass. App. Ct. 223 (2012), the Appeals Court determined that despite a judge’s clear finding of biological paternity, the child’s stepfather was a better choice for physical custody than the child’s biological father following the death of the child’s mother. The facts of this case are specific, but not completely unique. The mother and husband had one child together, Frederick, in 1999. She subsequently had a relationship with another man, and gave birth to Samuel in 2003. The mother told her husband that he was not Samuel’s father, causing them to separate during her pregnancy, but they were able to reconcile after Samuel was born.

The definition of “family” is constantly evolving in the United States, making each child’s needs and circumstances unique.

Samuel’s biological father was supportive early in mother’s pregnancy, but the relationship grew strained as her pregnancy progressed, and Samuel’s birth was ultimately attended by the husband, not the biological father. Samuel’s birth certificate reflected the husband as Samuel’s father, and following the birth, Samuel lived with mother, husband and Frederick. For the first three years of Samuel’s life, the mother occasionally brought Samuel to see his biological father, and the father provided the mother with some financial support. In 2006, the mother passed away. Samuel was three. After his mother’s death, Samuel continued living with husband and his half-brother. The husband treated Samuel as his son, by all accounts.

Where the husband’s name was on Samuel’s birth certificate, the world regarded him as Samuel’s father. However, nine months after the mother’s death, Samuel’s biological father filed a complaint in Probate and Family Court seeking to establish paternity and parental rights. The husband, in turn, asserted his parental rights over Samuel. At trial, the court found that the father was Samuel’s biological father. The husband did not challenge this finding. However, the judge ultimately determined that the biological father was unfit to parent Samuel and that Samuel’s best interests would be served by granting legal and physical custody to the husband. Notably, the judge also ordered visitation between the father and Samuel.

Parental Fitness Depends on the Particular Needs of the Child and History of the Parent-Child Relationship

At trial, the court not only considered the biological father’s willingness and ability to care for Samuel, but also how a change would affect Samuel. The court determined that Samuel’s needs, at this particular time in his life, could only be met if Samuel continued living with the husband. The court reached this conclusion despite the fact that the biological father had various interactions with Samuel since his birth, and there was no history of overtly bad behavior that people commonly associate with unfitness, such as substance abuse or criminal conduct. The court observed that the father’s contributions to Samuel’s life simply did not compare to the active parenting role the husband had maintained since Samuel’s birth, which had only deepened after mother’s death. (It should be noted that although the the decision does not specifically describe the grant of custody to the stepfather as a “guardianship“, it appears that the statutory basis for the stepfather’s custody was the Massachusetts guardianship statute.)

A crucial factor that the court examined was the effect that a change in custody would have on Samuel. This change would uproot Samuel’s normal routine, living situation, and the core authority figure in his life. The court also considered Samuel’s close relationship with his half-brother. The critical piece was whether severing Samuel’s relationship with the husband would be detrimental to Samuel’s well being. The Appeals Court explained “unfitness” in this context:

In custody matters, however, [t]he term [`unfitness’] is a standard by which we measure the circumstances within the family as they affect the child’s welfare. At a minimum, [therefore,] the fitness of a particular parent cannot be judged without a consideration of that parent’s willingness and ability to care for the child, as well as the effect on a child of being placed in the custody of that parent. One who is fit to parent in some circumstances may not be fit if the circumstances are otherwise. A parent may be fit to raise one child but not another. (Citations omitted.)

The probate and family court judge took pains to explain that she was not simply comparing the two living situations and picking the better option for Samuel. It was the profound detriment that Samuel would suffer if he was torn from his home that tipped the scales. The Appeals Court agreed, holding:

It is apparent that in making that determination, the judge considered along with ordinary questions of fitness … whether the effect on the child of a transfer of custody to the father would be sufficiently negative that the father would be unable to address the child’s special needs and must therefore be deemed unfit in the circumstances. (Citations omitted.)

Notwithstanding biological father’s contact and limited financial support of Samuel, the father was not declared “unfit” due to any egregious character flaws, problematic history or glaring deficiencies as a parent. The question was whether “the father is fit to parent this child in these circumstances at this time”. In the unique circumstances of Samuel’s life, the answer was no.

While it is difficult to apply the facts of such an idiosyncratic case to more traditional custody cases, but one take away from the case is that good Probate and Family Court judges understand that they must stretch the traditional definitions of “family” to meet the individual needs of children. Asserting parental rights as a stepparent or relative can be challenging, but Massachusetts law presents several avenues including a Complaint in Equity to establish rights as a de facto parent and a Petition of Guardianship of a Minor, ultimately formed the basis for Samuel’s stepfather’s custody claim.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email

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