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Paternity Cases and Custody

Produced by Jeff Wolf, Massachusetts Law Reform Institute
Created November, 2011

In a paternity case, the court can award custody to the mother or to the father or to them jointly if the father has voluntarily acknowledged paternity (on a Voluntary Acknowledgment of Parentage form) or if the court has decided that he is the father (by issuing a Judgment of Paternity).

Fathers of children born to parents who are not married to each other acknowledge paternity on the Voluntary Acknowledgment of Parentage form.  If both parents have signed this form and you need to go to court to get a custody order, you file a Complaint for Support-Custody-Visitation and check the appropriate boxes in paragraph 7.  You also file the Acknowledgment.

If the father has not acknowledged paternity and you need a custody order, you file a Complaint to Establish Paternity and check off the appropriate box in paragraph 6.

The judge can make a temporary child custody order while the case is going on.

Who has custody if the court has not made a custody order?

The mother of a child born to parents who are not married to each other automatically has custody of the child until such time as the court makes a custody order.

This is called having custody "as a matter of law."  In this situation the mother will not have a custody order to prove that she has custody.

How does the court decide which parent should have custody?

In giving custody to one of the parents, the court is supposed to

  • as much as possible, preserve (keep up) the relationship between the child and the primary caretaker parent;
  • consider where and with whom the child has lived during the six months right before the paternity case was filed;
  • consider whether one or both of the parents has established a personal and parental relationship with the child; and
  • consider whether one or both of the parents has exercised parental responsibility in the child's best interests.

How does the court decide that the parents should have joint custody?

The court is supposed to give the parents joint custody only if:

  • the parents have made an agreement to have joint custody; or
  • the court decides that the parents have successfully exercised joint responsibility for the child before the case was filed and have the ability to communicate and plan with each other concerning what's best for the child.

Is the court supposed to consider domestic violence when it makes a custody order?

Yes.

When the court issues a temporary or permanent custody order, the judge must consider evidence of past or present abuse to a parent or child as something that is not in the child's best interest.

If the court decides that a pattern or serious incident of abuse has occurred, then it must not place the child in sole custody, shared legal custody, or shared physical custody with the abusive parent, unless the abusive parent proves that giving custody to him or her is in the best interest of the child.

This law applies whether or not the parents are married to each other.

For more information see Massachusetts General Laws, Chapter 209C, section 10.

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