In Massachusetts, the custody of a child born to unwed parents is presumed to be solely with the mother of the child, unless and until paternity of the child is established, and there is a court order regarding custody.
It is important for both a mother and father to have paternity established, because without establishing paternity, there can be no child support order issued, or any order relative to custody and parenting time (also known as visitation), or any other orders regarding the child.
A father can establish paternity in Massachusetts in one of two ways. First, when the child is born, the father can sign a “Voluntary Acknowledgement of Parentage” which is an affidavit in which the father states he is the biological father. In this case, the father is added to the child’s birth certificate. In this circumstance, the mother is still considered to have sole custody of the child. In order for there to be a custody order, either parent can then file a Complaint for Support-Custody-Visitation. After this complaint is filed, the court can issue orders regarding child support, custody, and parenting time.
The other method to establish paternity is to file a Complaint to Establish Paternity with the Probate and Family Court. Once the complaint is filed, then either party can seek to have genetic marker testing (also known as DNA testing) done to establish paternity. Once paternity is established by DNA testing, then the court can issue orders regarding child support, custody, and parenting time.
It is important to note that there are two types of custody. One is legal custody, which is the “decision making” custody, such a where the child will go to school, the doctors selected for the child, and the religion the child will be brought up in (if any). The other type of custody is physical custody, which is who has the child in his/her care a majority of the time. Both types of custody are equally important, and in paternity actions, both types of custody can be awarded to both parents. However, absent a paternity action, the mother is the only parent who has both types of custody.
Establishing paternity is very important, as it affords the father a means by which to assert his parental rights. Such an action also allocates parental responsibilities, such as ordering child support and for a parent to maintain medical insurance for the child.