I Miss My Baby- Joint Legal and Physical Custody of Children Born to Unmarried Parents

In Massachusetts, application of the “best interests” standard by the Probate and Family Courts has evolved towards the working presumption that most parents should have joint legal custody of their children and that in general, children are best served by having ample or equal amounts of parenting time with both parents—divorced parents, that is.

When it comes to unmarried parents, though, the presumption remains the same as in years past. Without an agreement filed with the court and/or court order giving parents joint legal and physical custody or parenting time, mothers of children born outside of marriage have full legal and physical custody. See Massachusetts General Laws Chapter 209c, section 10 (b). Fathers of such children must seek court assistance to establish custody and parenting time.

But the unwed maternal custody presumption is not ironclad and can be rebutted. Chapter 209C sets forth the goal of giving all children similar rights and protections, regardless of the marital status of their parents. See G.L. c. 209C, § 1; E.L.E. v. A.M.A., 84 Mass. App. Ct. 1109 (unpublished 2013). It follows that a court may award parents joint custody, but only if it finds that they have successfully exercised joint responsibility for the child and have the ability to communicate and plan with each other concerning the child’s best interests. G.L. c. 209C, § 10(a), E.L.E. v. A.M.A., 84 Mass. App. Ct. 1109; DiCarlo v. Conway, 65 Mass. App. Ct. 1105, 837 N.E.2d 728 (unpublished 2005). Evidence supporting such a finding would include some of the following circumstances:

  • the parents prepared together for the birth of the child;
  • the parents agreed on the items to be purchased before the birth;
  • the father was present during the birth;
  • the parents co-parented for a period after the child’s birth;
  • the parents took trips together;
  • the father took an active role in parenting;
  • the father has been an integral part of the child’s life and development since birth;
  • the father provided child support and/or or other financial support for the mother and child voluntarily;
  • the parents agreed about where the child would live;
  • the parents formulated a visitation schedule;
  • the parents modified a visitation schedule by agreement;
  • the parents have both participated in decisions concerning the child’s religion, medical care or education; and
  • the child has healthy relationships with both parents.

Parents should evaluate the presence or absence of these circumstances in deciding whether it makes sense to enter an agreement, file, or oppose a petition seeking shared custody of a child born of wedlock.