Representing Unmarried Parents in MA
Helping Unwed Mothers & Fathers With Custody & Parental Rights
When Probate and Family Court clients search for a “divorce lawyer”, what they’re really looking for is a family law attorney. This is particularly true for unmarried parents who seek representation relating to child support and child custody. Unmarried parents sometimes feel like second class citizens in Probate and Family Court, where the focus always seems to center on divorce cases. However, custody and child support disputes involving unmarried parents are every bit as important – and complex – as the custody and support components of a divorce.
Indeed, Massachusetts law includes several substantive distinctions between child support and custody in cases involving unmarried parents that differ significantly from the law of divorce.
Generally, there are two kinds of cases involving unmarried parents:
- Complaints for Paternity, which aim to identify an unknown father
- Complaints for Custody, Visitation and Support, or 209C claims, which aim to resolve other legal issues surrounding a child’s upbringing
What Rights do Unmarried Parents Have Before Going to Court?
There are important differences between the rights of married parents versus those of unmarried parents prior to the entry of a custody order. Under Massachusetts law, married parents share essentially equal parental rights prior to the filing of a Complaint for a Divorce. For unmarried parents, however, the law provides a decided advantage to the mother prior to the entry of a court order:
Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.
In short, the parental rights of an unmarried father are inferior to those of an unmarried mother, until and unless a court orders otherwise. Unmarried mother's custody rights are also superior to that of a father who has not established paternity.
Complaints to Establish Paternity
Once a Probate and Family Court judge becomes involved, however, all parents in Massachusetts have legal rights and obligations. In order for these rights and obligations to take effect, the biological relationship between a parent and child must be established. In most cases, establishing a mother’s relationship with the child is simple. Most hospitals around the world provide mothers with a birth certificate documenting the mother’s status. (It is very rare to encounter a birth certificate in which the mother is not identified.) When parents are legally married, Massachusetts law presumes that the husband of a child born during the marriage is the child’s biological father. For unmarried parents, the father must generally execute a Voluntary Acknowledge of Parentage – i.e. a written document in which the father acknowledges his status as the child’s father – in order to appear on the birth certificate.
If a father is unknown or absent – or if the father simply refuses to execute a Voluntary Acknowledge of Parentage – then a Probate and Family Court must enter a finding of paternity.
There are two ways this can happen:
- Voluntarily, through a Voluntary Acknowledgment of Parentage
- Involuntarily, through a Complaint to Establish Paternity and a DNA or other genetic test
For cases in which a father will not execute a Voluntary Acknowledgment of Parentage, the mother must file a Complaint to Establish Paternity. Typically, a Probate and Family Court will order the alleged father to submit to a DNA test to determine if he is the child’s biological father. Contact our attorneys to discuss more of your father's rights in MA.
Voluntary Acknowledgment of Parentage
The easiest way to determine a child’s father is for him to voluntarily admit their status as the child’s parents, typically by signing a Voluntary Acknowledgment of Parentage. Most hospitals in Massachusetts require unmarried parents to sign this form in order to put their names on the child’s birth certificate. (Hospitals will automatically include a husband’s name on the child’s birth certificate, where the law presumes that a child born during the marriage is the biological offspring of the husband.) For the mother, executing a voluntary acknowledgement of parentage at the hospital amounts to basic paperwork. For an unmarried father, signing the voluntary acknowledgement is a bigger step.
Fathers can also choose to sign a Voluntary Acknowledgment of Parentage outside of the hospital setting. While this avoids the need to have a court identify the father, it is not a trivial decision for a father to make: Once signed, the form can only be rescinded or challenged within a narrow set of circumstances, and only for a short period of time. Fathers who have an inkling of doubt should deeply consider their options before signing the form.
If an alleged father refuses to admit to being a child’s parent—whether it is because he is trying to avoid his obligations as a parent, or because he sincerely doubts that he is the father—the child’s mother can file a Complaint to Establish Paternity and get a court to intervene. By providing sworn testimony that explains why a putative father should be subject to a DNA test, she can urge the court to compel a putative father to provide DNA. This puts pressure on the alleged father: If he refuses to comply without a persuasive reason, the court can use his refusal as evidence that he is the father.
Most courts in Massachusetts use genetic marker testing to compare the
DNAs of the mother, child, and alleged father. If they are a match, the
court will legally recognize the biological father as the child’s
parent, endowing him with the rights and obligations that come with this
Once paternity has been established through a DNA test, the case begins to resemble a typical action for child custody and child support.
Complaints for Custody, Visitation and Support under 209C
When both parents are known, unmarried parents resolve child custody issues through a legal action under G.L. c. 209C—Massachusetts’ laws regarding children born out of wedlock—called a Complaint for Custody, Visitation and Support. While these actions are similar to child custody discussions in the divorce setting, there are several unique features that arise when the parents are not married. These differences can affect both child custody and child support.
As noted above, one important difference between parental rights for married and unmarried parents is the status prior to the entry of a court order for custody. Married parents are generally viewed as having equal parental rights prior to the filing of a divorce. For unmarried parents, G.L. c. 209C, s. 10 provides unmarried mothers with full custody of children until a court orders otherwise.
Another important difference for unmarried parents is that a judge must make specific findings of fact that justify his or her determination that shared physical or legal custody is in the best interest of the child for unmarried parents:
In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement … or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child's best interests.
If the unmarried parents have never cohabitated, it may be difficult for the parties to convince a judge that the parents have “successfully exercised joint responsibility for the child” in the past. Proof of past cooperation is simply not required in divorce cases, and highlights the difficulties that unmarried couples can face if they want to co-parent their child.
Depending on the case, the rule requiring courts to make special findings before ordering joint custody can seem either outdated or backwards or sensible. For cases in which a father has been completely absent from the child’s life prior to the court’s involvement, a cautious approach to custody is often warranted. When fathers have been active parents prior to the court’s intervention, however, it is important for the father to document his history of involvement to be avoid being treated as an inferior parent.
How Child Support Works When the Parents are Not Married
The Complaint for Custody, Visitation and Support under 209C can also be used to resolve questions of child support. A parent’s obligations toward their child still exist, even if the child was not the result of a marriage. This allows a child’s mother to enforce her legal rights to child support payments from the child’s biological father.
Child support cases for unwed parents are strikingly similar to those that come up in traditional divorces: The court is called upon to determine the income of each one of the parents and the needs of the child in order to set the amount of regular support payments to be made to the parent with primary custody.
Child support is not identical for married and unmarried parents, however. For married parents, a court may only order retroactive child support going back to the date the Complaint for Divorce was served. There is no such restriction for unmarried parents, however. Indeed, the child support statute for unmarried parents, G.L. c. 209C, s. 10, requires courts to order retroactive child support all the way back to the birth of the child:
Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parent's ability to pay … and any support provided by the parent during such period.
Retroactive child support is generally not ordered for any period when the unmarried parents cohabitated. For unmarried parents who did not live together, however, the retroactive provision of the statute can add complexity to the case.
Child Support and Custody Modifications
Unfortunately, even after a court sets rules on child custody and support for unwed parents, life can intervene in ways that make these court mandates difficult to follow. Whether because the child’s father loses his job, the mother gets terribly sick, or some other unforeseeable reason, it might be necessary to modify the court order to better reflect current circumstances.
Thankfully, child support and custody orders can be revisited and altered if a parent’s or child’s circumstances have materially changed since the entry of a judgment. Modifying such orders, however, is not always an easy task. Prevailing in a modification action often requires a persuasive showing that the changes in the life of a parent or child are sufficiently substantial enough to warrant a modification to the child support or custody orders.
If your child’s other parent is requesting a modification to the court order, it can drastically alter your plans and expectations, particularly when the original judgment was the product of hard fought negotiations. Urging the court to adhere to the original terms of the order can protect both your interests and the interests of your child by preventing the other parent from skirting their obligations without a valid reason.
Enforcing Support and Custody Orders and Contempt of Court
Unless the court orders for child support and child custody have been successfully modified, each parent has an obligation to follow the plain terms of the orders. Failing to do so—especially deliberate failures—are serious violations of the court order. They not only impinge on the interests of the child; they can lead to contempt hearings.
Being held in contempt of court is no small matter. It typically comes with a fine but can also include a short stint in jail if the judge deems it appropriate.
Lynch & Owens: Helping Unwed Parents With Parental Rights in Massachusetts
The family law attorneys at the law office of Lynch & Owens strive to help unwed parents resolve their disputes. By serving as your legal representative we can help you identify the optimal solution to your circumstance, and then help you realize it by protecting your rights and furthering your interests—even if it takes you into a courtroom.
In fact, our lawyers have frequently represented unmarried parents in cases before the Probate and Family Court in Massachusetts, including many that involved child custody, parenting time, and child support issues. We have also helped unmarried parents after their case was initially resolved by pursuing or defending against modification requests or contempt hearings.
Contact us online or call our law office at (781) 253-2049 for a consultation or to learn how to get full custody not being married.
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