How Massachusetts Courts Resolve Custody Disputes Between Unmarried Parents

When married parents divorce, both have equal custody rights to their children until the Famliy Court issues an order stating otherwise.  However, when unmarried parents break up, their respective custody rights are not always clear.  So what happens when these parents disagree over issues concerning their minor children?

When unmarried parents split up, if there is no custody order in place, the father will have the burden of seeking custody through the Family Court.  One obstacle that he may face is proving that he is the biological father of the child.  Being listed on the birth certificate does establish a presumption of paternity.  So, if the father is on the birth certificate, then he will be able to proceed with filing a complaint for custody.  However, if the father is not on the birth certificate, then he will have the burden of establishing paternity first, which is generally done via DNA testing.

The fact that a father’s custody rights are not automatic makes it seem like there is a legal “preference” towards mothers.  However, that is not the law’s intended purpose.  The rationale behind the law is to ensure that someone will always have legal custody of child from the moment it is born.  And because there is never a question about who the child’s biological mother is, custody for her will be automatic.  However, that is not to say that they are automatically permanent – the number of cases in which custody is taken away from unfit mothers continues to increase.

In an ideal situation, both parents would be able to agree on a custody designation and parenting plan.  However, this is rarely the case for unmarried parents who often end up in court to resolve the dispute.  Those who find themselves in this situation should consult an experienced family law attorney as soon as possible to determine their custody rights and obligations.


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