Separating from a spouse or partner when you have children who are not yet old enough to look after themselves is often an anxious and challenging experience. In Massachusetts, there is a clear distinction between the rights of married couples who are going through a divorce and the rights of unmarried couples who are separating. Separating or divorcing couples should ensure they understand the law concerning each person’s rights to child custody, child visitation and child support to avoid disappointment and disputes. If necessary, a family law attorney can help provide advice and assist with applications to the Probate and Family Court.
Married Parents’ Rights
Unless the court has made an order which defines the rights of each parent with respect to their children, it can be assumed that both parents have equal rights. The male spouse in particular does not have to prove paternity and is assumed to be the father of the children because of the marriage. This means that both parents have equal legal custody of the children, but not necessarily equal physical custody, as this may be impractical.
This means that if the couple are about to divorce, they must come to a mutual agreement (a parenting plan) about how much time the children will spend with each parent, who the children will live with (either one of the parents or both alternately or some other arrangement), how much each parent will contribute to the welfare of the children, visiting times and other details.
A mutual agreement is better in the long term interests of the children than having a disagreement about child custody arrangements and having to seek the help of the court. However, even if a mutual agreement is reached, it is better to make sure that the details of the agreement are written down and signed before an attorney. In the event that circumstances change, as probably will happen at some time in the future, this agreement can be revisited and modified if the new arrangement continues to be mutually acceptable.
Not all separations and divorces, unfortunately, are amicable and if the couple cannot come to an agreement about child custody and other arrangements after separation, then this is when the help of the Probate and Family Law Court is needed. Either parent can file an application for custody in the court, or both, but the court will only make a final decision based on all the information available and in the best interests of the children. A court order may in time be revisited and an application to the court can be filed for a cancellation or modification of the original court order.
Unmarried Parents’ Rights
Under Massachusetts law, the male partner of an unmarried couple does not have automatic rights to any arrangements made about the children. This is because the male partner is not automatically considered the father of the children. The mother in this case assumes full rights over the welfare and custody of the children unless the male partner’s parentage is established in one way or another as approved by the court.
There are two main ways in which parentage can be established. One way is when both parents sign a “Voluntary Acknowledgement of Parentage.” This must be signed by both parents and the document registered in court. The other way is for the male parent to request a DNA test through the court to establish paternity.
Note that if parentage is not determined or acknowledged for the unmarried male partner, the mother assumes all responsibility for the children and cannot expect that the partner she is separating from has any responsibility to provide financial assistance in the form of spousal or child support.
The Role of the Court in Determining Parental Rights
As has been mentioned above, a mutually agreed parenting plan between the mother and father, whether they are married or not, is the best way to resolve the often thorny issues of who lives with who, how children are cared for, visitation arrangements and financial support. When the parents cannot agree, then either parent can propose a plan and submit it to the court. Both parents may also submit alternative plans and leave it to the court to make a decision about how arrangements should be made.
Until the court has made such a decision, the rights of both parents, assuming that if they are unmarried that parentage has been already determined for the male partner, are assumed to be equal. In the case of the threat of physical abuse by one or the other parent against the children, then a decision may be made quickly to restrict any rights by the alleged abuser. Otherwise, the court will make a final decision based on what it regards as the best interests of the children taking into consideration such criteria as:
- the child’s relationship with each of the two parents;
- each parent’s ability to provide the child with basic necessities, including food, housing, education and health;
- both parents’ moral fitness;
- each parent’s mental and physical health;
- each parent’s resolve to maintain a quality relationship between the other parent and the child(ren);
- the child’s record within the community;
- whether either parent has a history of child neglect or domestic abuse;
- any other factor the judge determines as relevant on a case-by-case basis.
Any decision the court makes can be modified or cancelled at some time in the future if one or the other or both parents file an application to modify or cancel the order. This also applies to any decisions made about child and spousal support.
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