Frequently Asked Questions: Never-Married Parents

Establishment of Paternity

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.

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.

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.

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.

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.

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. The next question discusses the steps you can take.

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.

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.

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 the question 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.

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

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 below for a definition of custody.

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.

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.

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.

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.

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

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:

  • the parents have successfully exercised joint responsibility for the child before the case comes to court and
  • the parents have the ability to communicate with each other and plan with each other concerning the child’s best interest.

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?

The law requires that the judge consider the following things:

  • which parent has been the primary caretaker for the child and the quality of the care;
  • where and with whom the child has lived in the six months before coming to court;
  • whether one or both parents has established a personal and parental relationship with the child; and
  • whether one or both parents have exercised parental responsibility in the best interest of the child.

Visitation

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.

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.

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.

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

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.

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.

Mark Berson Attorney at Law