Attorney Fiore
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Custody and Paternity
A father who seeks to obtain custody or visitation with his minor child or children must establish paternity. To establish paternity, a voluntary acknowledgment of paternity can be executed by the parents or a paternity complaint can be filed with the probate and family court or district court. Massachusetts General Laws, Chapter 209C, Section 2. However, only the probate and family court can make an order on custody and a parenting plan. If paternity has been established, a complaint for custody, support and visitation can be filed by either party.
If a child is born while the mother of the child is married to another individual or within 300 days of the mother’s divorce, the father cannot file a paternity action under G.L. Chapter 209C. A complaint in equity would need to be filed. If an action for custody or visitation relates to a child over 14, the child must be joined as a party under 209C. Nevertheless, even when paternity has been determined by the court, the mother retains sole custody of the child unless the court orders otherwise.
In an action under G.L. Chapter 209C, a court must first preserve the relationship between the primary care parent and the child. The court shall consider where the child has lived for six months prior to the filing of the complaint. Also, the court must consider the parental relationship of each parent with the child. If a child has resided with one parent and the child’s needs are adequately met by that parent who can continue to provide care, it is not in the child’s best interest to change that custody arrangement. Custody of Kali, 439 Mass. 834 (2003). Further, if there is a domestic abuse issue, there is a presumption against any award of custody to that abusive parent. In some circumstances, joint custody can be awarded if the parties have successfully exercised joint responsibility for the child and are able to communicate with each other prior to filing a custody action.
Once a custody or visitation order has been entered, the court can modify the order upon determining that there has been a substantial change in circumstances and the modification is in the child’s best interests. Examples of substantial change in circumstance include one parent moving out of state, parenting time with the child is harmful to the child, or the custodial parent is unfit. An unfit custodial parent can be an individual who has substance abuse issues, a criminal history or has a history of child or partner abuse.