Chapter 9. Paternity

1. Why would I want to bring a paternity case? What is it?

A paternity case is a court case between two parents who were not married when the mother became pregnant and are still not married. If there is a question about who is the father, or if the father denies being the father, the court can order genetic marker tests and then enter an order finding the man to be the legal father. This is called establishing paternity.

[Note: In Massachusetts, this type of case is also referred to as “209C,” because the law concerning it is found in Chapter 209C of the Massachusetts General Laws. This is different from Chapter 209A, which governs restraining orders and protection from abuse. See Question 16.]

2. I wasn't married to my child's father when she was born and her father and I both agree that he is the father; does that count?

A verbal agreement is not enough to make him the legal father. Neither is having his name on the birth certificate.

There are two ways to establish paternity:

• Filing a paternity case in court, and having a judge establish paternity.
• Both parents signing a "voluntary acknowledgment form."

There have been many recent changes to the paternity laws which make it easier to establish paternity than it was in the past. You should know that signing a “paternity acknowledgment form” can now have the same effect as getting a court adjudication of paternity in some instances. It has also become harder for people to challenge a “paternity acknowledgment form” once they have signed it. You should therefore be very careful when you sign these forms. See Question 9.

3. Why would I want to do this?

You might want to file a paternity action to get a court order of custody, to be clear about when and how the father can visit the child, to get child support, to learn the medical history of the other parent, to make it easier for your child to get benefits from the Veteran's or Social Security Administrations, or to make it easier for your child to inherit money.

4. I thought you said this case is only about deciding who is the father. How can he ask for custody or visitation, or how can I get custody?

In addition to establishing paternity, the court can decide custody, visitation, child support, insurance and other issues concerning the child in a paternity action.

5. Is there any reason why I should not file a paternity case?

Yes, there are reasons you may not want to, and you should talk it over with a lawyer or advocate. If the father does not know where you are, filing a court case against him will notify him of where you live, and give him the chance to go to court and ask for contact with your child. In addition, the law presumes that a mother of a child born out of wedlock has custody of the child until paternity is established and a court orders that the father has some custody rights.

6. Why do I have to go to court with the Department of Revenue (DOR) on a paternity case?

If you are on public assistance, DOR can legally file a paternity case against the other parent for child support. The reason is that the state is supporting the child and has the right to try to get the father to pay support through DOR. DOR can arrange for genetic marker testing; sometimes they even test right at the court house. The new tests just use a swipe from inside the mouth and do not hurt at all. No blood is needed. (See Chapter 2 for information on what to do if you are afraid of the father and don't want DOR to go after him for child support.)

7. If I am in court with DOR on a paternity case, the DOR lawyer will take care of getting me a custody order and everything else, right?

No. The DOR lawyer represents DOR, not you. She is there to get child support to reimburse the state for supporting you. If you are in court with DOR and the father raises custody or visitation issues, you should tell the DOR attorney and the judge that you do not want to get into those issues because you are not prepared, and did not have any "notice" that they would be discussed today. If the father wants to bring up those issues, he should send notice to you first so you have time to prepare and get legal advice.

8. OK, so the DOR lawyer doesn't do custody, and I understand I don't have to get into custody and visitation if I'm not ready, but what if I DO want to get a custody order on the day that DOR has us in court?

If you want to get everything taken care of at the court hearing that DOR set up, you can try to. You can send notice to the father that you plan to ask for custody and other orders on the same day that DOR asks for a support order. This can be a good thing, if you are ready, because you end up doing less work. The DOR case is filed, so you just have to prepare a motion and be ready to make your presentation to the court. (See Chapter 12)

9. What if the father and I signed a voluntary acknowledgment form, but now I don't think he's the father? Can I get him tested?

It depends. Recent changes to the paternity laws make this a bit complicated. You should seek legal advice. The most important factor is when the acknowledgment was signed. In general, the new rules are as follows:

• If you signed an acknowledgment before April 13, 1994, that would create only a presumption that the man who signed it with you was the father.
• If you signed an acknowledgment between April 13, 1994 and March 31, 1998, and the child was under 6 months of age, either parent has the right to request parentage testing (genetic marker testing), but only within one year (of signing). If no parent asks for tests within a year of signing, the acknowledgment becomes the same as a Court judgment of paternity, or a final order of the Court. If the child was 6 months or older when you signed the paternity acknowledgment, the acknowledgment is automatically the same as a Court judgment.
• If you signed an acknowledgment on or after March 31, 1998, either parent only has 60 days to challenge the acknowledgment by filing an action in the Probate and Family Court where the child lives. If such a case challenging the acknowledgment is filed, the Court must order genetic marker testing. Unless either parent challenges an acknowledgment within 60 days, the acknowledgment is the same as a Court judgment, and can be challenged within a year ONLY if there was fraud, duress or a “material mistake of fact” involved. You should therefore be very careful when signing a paternity acknowledgment!

By the way, if tests are needed, all 3 of you need to undergo tests, but you do not all have to go together. If the father tells you that, he is mistaken.

10. I live with the father of my child. We've never been to court, but he's on the birth certificates of our two children. We never signed any acknowledgment forms. If we split up, who has custody?

You do, but note the following:

The law presumes that the mother has custody of the children where the parents are not and were not married to each other. "Presumes" just means that he has to go to court and try to get a court order if he wants to take custody away from you.

The law about acknowledgments changed in 1994, so you might not have been given the choice of signing a form at the hospital. In your case, the father of your children is only the "presumed" father--he needs to file an acknowledgment signed by you both or else take you to court if he wants to be legally declared to be your children's father.

The important thing to understand is that even if you have custody now, custody can change. He can go to court and try to take custody from you.

11. If there's no court custody order, and the law presumes that the mother has custody, then I can move out with the children and he can't touch us, right?

You can move out with the children, but he can file a paternity action against you. He can try to establish paternity and then try to get custody and visitation. If you have been living with him, and then just take the children so he cannot see them, he will have a sympathetic argument to make to the court about his parental rights and the children's interests in maintaining a relationship with their father.

12. What if I move out and leave the state with the children? Then, he won't be able to touch us, right?

Generally, children are presumed to be residents of Massachusetts if they have been here for the last 6 months or more. If you leave with the children, he can still file a paternity action against you. He can ask the court to order that the children be returned here. If they are Massachusetts residents, it will be almost impossible to get another court to make orders about their custody and visitation, and Massachusetts courts will be able to make such orders, even if you take them out of state. So, if you move out of state with the children, you run the risk of having a sheriff show up on your doorstep someday with an order that would allow him to take your children and bring them before a Massachusetts court. (See Chapter 1 and Chapter 6 for more information.)

13. I am married to a man I haven't lived with in over a year. My new boyfriend and I had a baby last month and I want him on the birth certificate. We want to raise the baby; what do I do?

This is a situation that arises more often than you might think. You need to get the form called Affidavit of Nonpaternity. You can get it from DOR or from the Probate and Family Court. Your husband should want to fill it out because if he does not, the law says he is presumed to be the baby's father, and he will have to pay child support! Your boyfriend will need to complete the Voluntary Acknowledgment of Parentage form.

If everyone fills out these forms, you can file them with the court, then go ahead with a Paternity case. You and the biological father can file an Agreement stating the plans you both intend to follow.

If there is a problem with your husband, you should talk with a lawyer. This may be a difficult situation to take on by yourself.

14. I'm confused. What should I do?

Only you can decide what is best for you and your children. Court orders are serious, and can have a big impact on you and your family for a long period of time. Try to get more information so you can make the best decision possible. Talking with a lawyer is a good idea if you are still confused.

15. I think I understand that this is important and serious; what choices do I have?

You have several options. Here are some:

• If you can talk to the father and are not afraid of him, you can try to work out an agreement of how you will both spend time with the children in the event you separate. Try to put your agreement in writing, then you should both sign it, and file it with the court.
• If you would like to work out an agreement but feel you both need an impartial person to help, there are mediators who can help you. Most divorce mediators will assist you; the process is very similar, even though you are not married. Look in the yellow pages, and ask others for references. You and the father will have to pay for mediation services.
• You can file a paternity action. The family service office in the court may help you work out an agreement, or you can bring your case before a judge. If you work out an agreement in court, or have one you both did on your own, you can ask the court to approve it and make it an order of the court.
• NOTE: If you are battered, or afraid of him, you should tell the family service officer; you can ask that you not have to sit in the same room with him to work out the agreement. You can do nothing, and wait to see if he files.
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16. What do I have to do if I have a child born out of wedlock and I want to establish court orders for child support, custody or visitation?

If paternity has not been established, you must file a Complaint to Establish Paternity. If you and the father of the children have signed an acknowledgment of parentage, you should file a Complaint for Support-Custody-Visitation under M.G.L. Ch. 209C, along with a copy of the acknowledgment. (See Chapter 12.)

17. What do I have to do if I want to file a Paternity case?

Here's a checklist you can go through that will help you:

_____ Go to your local Probate and Family Court and pick up these forms:

• Complaint;
• Affidavit Disclosing Care and Custody Preoceedings;
• Financial Statement;
• Domestic Relations Summons; and
• Affidavit of Indigency (if necessary--it will waive the costs of serving the papers and the summons).

_____ Fill out the Complaint, and the Affidavit(s), either with a typewriter or with a black pen printing neatly.

_____ Talk with a lawyer if you have questions or concerns--the people who work at the Probate and Family Court cannot give you legal advice.

_____ Make copies of your forms:

• a set for you;
• a set for the father;
• a set for DOR (if you or your child are or were a recipient of TAFDC or AFDC).

_____ File at the Probate and Family Court:

• the original Complaint;
• the original Affidavit Disclosing Care and Custody Preoceedings;
• the Affidavit of Indigency (if you cannot afford to pay to serve the papers and summons).

_____ Before leaving the filing desk, ask for a copy of your approved Affidavit of Indigency, if you are using one (the Register or First Assistant has to authorize it, and may ask for your completed Financial Statement before authorizing it at the Probate and Family Court).

_____ Take your copies of the court papers and the original Summons (and the copy of your approved Affidavit of Indigency) to the sheriff.

_____ Have the sheriff serve:

• the father;
• DOR (if involved; you can also just mail a copy of the Complaint to DOR; be sure to keep DOR informed of all court dates).

_____ Make arrangements for the sheriff to get the original Summons back to you after he has served the father and filled in the Summons.

_____ You will then need to file the original Summons at the court, to prove that the sheriff served the papers.

_____ Fill out the Financial Statement if you have not already done so (you might need to do this in order to get your Affidavit of Indigency approved). Note that you will have to keep it up to date by filling out a new one, or filing a statement saying the old one is still accurate. Some courts require an update every 90 days.

_____ Fill out a Demand for a Financial Statement form. You file the original with the court, and send a copy to the father, along with a blank Financial Statement form. He has to send you a copy of his Financial Statement and file the original with the court. Now you will know what he claims to be making, his expenses, and if he has any valuables.

_____ Fill out any Motions you might need to file.

_____ File Motions; serve the other party (don't forget DOR if involved). Service of motions may be done by mail; be sure to observe time requirements.

_____ Get ready for and attend hearing.

_____ The day of the hearing, check in with the clerk's office to tell them that you are there for a motion.

_____ Check in with the Family Service Office. Be prepared to go before the judge if you cannot work out an agreement. When you are before the judge, tell the judge what you are asking for and give a brief explanation. Listen closely to the judge and answer any questions as carefully as you can. When in the courtroom, speak only to the judge, and only when the judge asks you to speak.

_____ Get copies of any temporary agreements/court orders made that day on court.

_____ Pick up a Request for Pretrial/Trial form, fill it out, mail a copy to other side and file the original (keep copy for yourself).

_____ Wait for the date of the hearing from the court.

18. Help! I just got served with a Paternity case! What do I do?

Relax. You have time to respond if you just got served. You should try to talk with a lawyer, and show her the Complaint.

Read the papers you were served. One is a Complaint, and one is a Summons. The Complaint will tell you what the other side is saying. Usually, it is the father who files against you. Look at the bottom of the Complaint. See if he wants custody, or if he just wants visitation. At the bottom right, the Complaint is signed. If only his name appears there, it means he does not have a lawyer (yet).

You should prepare an Answer to the Complaint. Look at the Complaint. Each sentence is numbered. You have to say whether you “admit" (agree) or “deny" (disagree) with each numbered part of the Complaint. Do this on a separate sheet of paper. See sample Answer in Appendix E.

You can file Motions with your Answer. For example, if you are served with a Complaint from a man who you do not believe is the father of your child, you can file a Motion for Paternity Tests. See sample Motions in the Appendices to other Chapters.

Here's a checklist you can go through that will help you:

_____ Take your original Answer and any Motions to the court. File the Answer and any Motions. At the court, get the Docket Number of the case if it does not appear on the Complaint. Filing an Answer does not cost anything. You have 20 days from the day you receive the Complaint to file your Answer.

_____ Mail a copy of your Answer and any Motions to the other side. Look at your Summons. That will give you the address to use. If the other side has a lawyer, you must mail your Answer to the lawyer.

_____ Is DOR involved? If so, send a copy of your Answer and any Motions to DOR, too. Put the Docket Number on your Answer.

_____ Fill out the Financial Statement form; if the other side does not send you a demand for it, you will still need to bring it to court on the day of the hearing.

_____ If you have not filed any Motions, the case will not be heard at court unless a Request for Pre Trial/Trial form is filed. Either side can do this. Usually, the person filing the Complaint does this, but if you decide you want to have the case heard, you can fill it out and file it.

_____ Get ready for court. You will get a notice from the court with a hearing date once the Request form is filed.

_____ On the day of your hearing:

• Go to court.
• Check in at the desk, and find your courtroom--check with the clerk in that courtroom.
• You may be told to go to Family Service; if so, go there and check in with the Family Service clerk.
• If you are a victim of abuse or violence from the other side in your case, be sure to tell that to the Family Service Officer. If you do not feel safe sitting in the same room with the other side, you may ask that the Family Service Officer meet with you separately.
• Do not agree to anything unless you understand what it means. Do not sign anything unless you understand it and really agree with it.
• Get a copy of anything you sign, especially if it is an agreement.
• If you do not come to an agreement, go in front of the judge. Tell the judge what you think is fair and why. Speak only to the judge when in the courtroom; do not talk to the other side when in court, and do not interrupt.
• Listen to the judge's questions, and try to answer them carefully and directly.
• Get a copy of any court orders or agreements made that day.

See also Chapter 12 for “How to Do a Probate and Family Court case.”