Important child custody information for never-married parents

Today, it is much more common to have children outside of marriage. In fact, 40% of children born in the U.S. today are born to parents who are not married (NPR.org).  Regardless, there is still very limited information available to Massachusetts parents, especially fathers, of children born out of wedlock and their legal rights . In a nutshell, here are the current custody rights afforded to never-married parents and their children (mostly found in chapter 209C, section 10 of the Massachusetts General Laws):

• Children born out of wedlock are entitled to the same rights and protections as children born of a marriage (found in chapter 209C, section 1).

• Unless and until a man is adjudicated the father of a child born out of wedlock (i.e. via a paternity test) or executes a voluntary acknowledgment of paternity (i.e. signs the birth certificate), the mother has sole legal and physical custody.

• Even after a man is adjudicated the father or executes a voluntary acknowledgement of paternity, custody remains with the mother until a different custody order is established by a probate and family court.

• What this means is that until an action is filed in the probate and family court (and service is accomplished on the mother) a father has no say in anything pertaining to the child. This also includes where the child resides. For example, a mother can take the child to another state without notice to the father, and a court is precluded from ordering her back to Massachusetts.

• While a judge can order shared legal custody to divorcing or divorced parents, couples of children born out of wedlock cannot share custody unless they agree to do so, or unless the court finds that they have historically been able to exercise joint responsibility for their child and can communicate and plan effectively regarding what is best for their child.

• In addition, a court must determine who the primary caretaking parent was for the six months prior to the court proceedings, and maintain that relationship.

• For fathers, this can be lose/lose situation:  if the mother won't let a father have involvement in the child's life until he files the proper documents in court, he hasn't been able to exercise joint responsibility for his child, show cooperation with the child's mother, or act as a caretaker. So not only has he missed out on valuable bonding time with the child, but he will probably lose out on equal decision-making power in the future or the ability to obtain joint physical custody.

• On the other hand, this provision protects mothers and children from the return of absentee fathers who are trying to quickly establish a relationship with their children (perhaps because they have been ordered to pay child support).  It would not be in the child's best interest to force them into a relationship with someone they do not know well or remember.

Child custody is a very difficult, complicated and emotional matter. It is important to obtain experienced legal counsel to help you navigate through the court system and protect the best interests of your child. Contact our Westborough Child Custody Lawyer to discuss your specific issues further.


(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
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