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ANSWERS TO COMMON
QUESTIONS FOR NEVER-MARRIED PARENTS
ESTABLISHMENT OF PATERNITY
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I am the father of a child. I was
never married to the child’s mother. I understand that I must
take certain actions to be legally determined the father. What
do I do?
There are a couple of ways this can be done. If you and
the child’s mother agree that you are the father you may file a
document called a Stipulation of Voluntary Acknowledgment of
Parentage. This form is commonly referred to as a
“voluntary acknowledgment form.” Each parent signs this form
before a notary. After 60 days, this form has the same effect
as a judge determining that you are the father.
If you and the mother do not agree that you are the father of
the child, you may file a Complaint to Establish Paternity,
asking the court to determine that you are the child’s father.
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I believe I
signed a voluntary acknowledgment form at the hospital when my
child was born. What does this mean?
Many unmarried parents sign a voluntary acknowledgement
at the hospital at the time of the birth. For babies born after
1994, it is necessary for parents to sign this form in order for
the father’s name to be on the child’s birth certificate.
The law about voluntary acknowledgment forms changed in 1994.
If you sign this form after 1994, it means you are legally the
child’s father. If you signed it before 1994, you still need to
file a Complaint to Establish Paternity to be legally declared
the child’s father.
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If I am not
entirely sure I am the father, are there tests, which can be
done to determine if I am?
Yes. The most accurate form of testing is called genetic marker
testing. The Massachusetts Department of Revenue conducts this
testing at the Probate and Family Court.
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I signed a
voluntary acknowledgment form at the hospital. Is it possible
to have testing now?
It depends. The laws and rules that address challenges
to a voluntary acknowledgment are complicated, and the answers
differ based upon many factors. It is recommended that you
consult an attorney before initiating these actions.
Additionally, a determination that the biological father is
someone other than the person listed on the voluntary/birth
record does not mean that custody, visitation, and support will
be changed.
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Can either
parent request testing?
Yes.
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I am still a
minor. Can I sign a voluntary acknowledgment?
Yes. Minors can sign voluntary acknowledgment forms.
It is difficult, maybe impossible, to change your mind once a
voluntary acknowledgment is signed, therefore it is always a
good idea to have paternity tests.
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I am the mother
of a newborn child. I am married but my husband is not the
father. What does this mean?
In Massachusetts, if a child is born during a marriage (or
within 300 days of a marriage) the husband is presumed to
be the father of the child. This means that the law assumes
that he is the father, whether or not he actually is. Question
8 below discusses the steps you can take.
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I would like to
have my baby’s father legally declared to be his father. My
husband agrees he is not the father. The baby’s father agrees
that he is the father. What do I need to do?
You need to file a Complaint to Establish Paternity
with the Court. In the Complaint you need to name both your
husband and the baby’s father as defendants. In addition, you
and your husband should file a form called an Affidavit of
Denial of Paternity and you and the father should file a
voluntary acknowledgment form.
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I believe I am
the father of a child. The child’s mother is married. Is there
a way for me to find out whether I am the father?
Yes. It is very complicated for a father in this
situation to bring a court action to determine if he is the
father of the child. It is important that you consult with a
lawyer to help you in drafting the paperwork you need to go
forward.
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I believe I am
the father of a child, but the mother and another man signed a
voluntary acknowledgment and his name is on the birth
certificate. Is there anything I can do?
Yes. As in Question 9 above, it is very complicated for
a father to bring a court action in this situation. It is
important to consult a lawyer to help you draft the paperwork
you need and to represent you.
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My girlfriend is
expecting a baby. I know I am the father. Can we obtain a
judgment of paternity or file a voluntary acknowledgment before
the baby’s birth?
No. A court can only enter a judgment of paternity
after a child is born. Parents cannot file a voluntary
acknowledgment until after the birth.
CUSTODY
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I am the mother
of a newborn child. My baby’s father and I are not married. We
have not been to court about custody. Who has custody of our
baby?
If there are no court orders concerning custody
of your child and the mother and father are not married, the
mother automatically has sole legal and physical custody of the
child. See Question 4 below for a definition of custody.
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Does it make any
difference if the parties have signed a voluntary acknowledgment
and the father is on the birth certificate?
No. If the parties are unmarried and a court has
not determined custody, the mother automatically has sole legal
and physical custody of the child, even if the parties have
signed a voluntary acknowledgment form and the father’s name is
on the birth certificate.
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The Court issued
an order for child support but did not issue orders concerning
custody. Who has custody in this situation.
If the parents are unmarried, the mother has sole
legal and physical custody of the child unless there is a
court order with different terms.
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Is there more
than one type of custody?
Yes. There are two types of custody – legal
custody and physical custody.
Legal custody is the authority to make major decisions on behalf
of your child. If the parents share legal custody they will
work together to make major decisions in the child’s life about
such issues as education, medical care and religion. If a
parent has sole legal custody that parent shall have sole
responsibility for making major decisions about these issues.
Physical custody is where the child lives. One parent may have
sole physical custody of the child, which means that the child’s
primary residence is with that parent, but can spend time with
the other parent. Parents can also share joint physical
custody, which means the children reside with each parent for
certain periods of time.
The type of custody that works best for your child depends a
great deal on your relationship with the other parent. Joint
custody arrangements require a great deal of cooperation between
the parents and an ability to communicate with each other and
make difficult decisions for your child.
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Can unmarried
parents agree to share custody of a child?
Yes. Unmarried parents can reach an agreement
about custody and can ask to have their agreement made part of a
court order. The judge must review the agreement and find that
it is in the best interest of the child.
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We are having
trouble reaching an agreement. Can someone help us reach an
agreement?
Yes. Mediation is one method available to you
for solving disputes in the Probate and Family Court. Please
refer to markbersonmediation.com
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Can the court
order joint custody if we don’t agree?
The Court can do so, but it is usually not done.
The law in Massachusetts is that a judge can only order
joint custody without an agreement if:
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the parents have successfully exercised
joint responsibility for the child before the case comes to
court and
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the parents have the ability to
communicate with each other and plan with each other
concerning the child’s best interest.
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I am the father
of a child. The mother and I are not married. I would like to
have custody of our child. The mother does not agree. There
are no custody orders at this time. What will the court
consider in making a custody order when the mother and I do not
agree?
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The law requires that the judge consider
the following things:
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which parent has been the primary
caretaker for the child and the quality of the care;
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where and with whom the child has lived in
the six months before coming to court;
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whether one or both parents has
established a personal and parental relationship with the
child; and
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whether one or both parents have exercised
parental responsibility in the best interest of the child.
VISITATION
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I am the father
of a baby. The mother and I were not married. I signed a
voluntary acknowledgment form at the hospital and am on the
baby’s birth certificate. Things are not going very well with
my relationship with the mother and she will not allow me to see
the baby. Do I have a legal right to see the baby?
If she does not agree, you will need to ask the
court for the right to visit with the baby. You do this by
filing a Complaint for Custody, Support and Visitation.
You will need to attach a certified copy of the voluntary
acknowledgment form, which you both signed at the hospital.
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I am not on the
birth certificate. Can I still ask the court for visitation?
Yes, but in order to have a right to visitation,
you must be legally determined to be the father of the child.
If you and the mother sign a voluntary acknowledgment form, it
has the effect of legally stating you are the father. If this
has not been done and the mother is not willing to do so, you
need to take an additional step of asking the court to legally
declare that you are the father. This is done by filing a
Complaint to Establish Paternity.
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The court
ordered me to pay child support but the order does not say
anything about visitation. Shouldn’t I get to visit with my
child since I am paying child support?
The issues of child support and visitation are
two separate issues and are looked at independently by the
court. If the court orders you to pay support you do not have
an automatic right to visitation. You also cannot be denied the
right to visitation because you have not paid support.
If you and the mother cannot agree about visitation, you will
need to ask the court to order visitation. This is done by
filing a Complaint for Custody, Support and Visitation.
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We have a court
order for child support and for visitation. The other parent is
not paying child support according to the order. Do I have to
allow visits?
Yes. The issues of child support and visitation
are two separate issues and are looked at independently by the
court. You can ask the court to enforce the order for the other
parent to pay child support by filing a Complaint for
Contempt but you cannot stop visits because child support is
not being paid.
CHILD SUPPORT
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My child’s
father and I are no longer living together. He is not paying
child support. I need to get a court order for support. What
do I need to do?
If you filed a voluntary acknowledgment form and
his name is on the child’s birth certificate, you can file a
Complaint for Custody, Support and Visitation. If his name
is not on the birth certificate (or if the child was born before
1994) you will need to file a Complaint to Establish
Paternity.
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I don’t
understand how child support is determined. Is there
information available?
Yes. Please refer to the FAQ – Answers to
Common Questions Concerning Child Support.
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I have a order
for child support and visitation. The other parent is not
allowing me to see the child according to the terms of our court
order. Can I withhold child support since I can’t see my child?
No. The issues of child support and visitation
are two separate issues and are looked at independently by the
court. You can ask the court to enforce the order by filing a
Complaint for Contempt but you cannot stop paying child
support because the other party is not allowing you to visit.
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