Paternity Law

Will child custody always go to the mother?

No. The Massachusetts General Laws, as well as the Case Law, indicate that in the absence of misconduct, the rights of the parties shall be deemed to be equal. However, the courts will generally look to what is in the best interests of the child, as well as what arrangements the parties had in effect prior to the filing of the divorce. For example, if the mother stayed at home and took care of the child while the husband worked, then in all likelihood the court will continue that arrangement. Accordingly, which parent is deemed to be the child’s “Primary Caretaker” is always an important consideration.

What is the difference between physical custody and legal custody, and what is shared legal or joint legal custody?

Physical custody simply refers to the parent with whom the child or the children reside. Legal custody on the other hand, refers to which parent will have the right to make major decisions on behalf of the child or children. Accordingly, a parent who has legal custody will have the right to determine all major life decisions, including elective major medical procedures, religious upbringing, school, etc. When parties have shared legal custody, also known as joint legal custody, the parties must consult and agree on all major life decisions for the children. Because child custody often permanently affects the relationship between a parent and a child, when the parents are unable to agree, the court will conduct an extensive inquiry in order to determine what is in the “best interests of the child”. In making such a determination, the court will frequently appoint at “Guardian Ad Litem (GAL)” to investigate issues relating to child custody and visitation, and to report back to the court. The GAL will interview the parties, talk to witnesses, talk to the children, and in some cases may interview the children and parents together, obtain medical records, school records, etc., and will then usually make a recommendation to the court. If a party does not agree with the recommendations of the GAL, the matter can proceed to trial; however, judges often, but not always, place enormous weight on the recommendations of the GAL. Oftentimes a recommendation of a GAL can be challenged based on bias, lack of experience, failure to interview critical witnesses, or an otherwise less than thorough investigation.

How is child support determined?

In Massachusetts, the courts utilize Child Support Guidelines in order to determine the level of child support which would be appropriate in various situations. The Child Support Guidelines are amended from time-to-time and new Child Support Guidelines recently went into effect on January 1, 2009. In setting a Child Support Order pursuant to the Guidelines, the court will consider child care costs, the number of children, cost of medical insurance for the children, the amount of parenting time expended by either parent, and prior court Orders and obligations affecting either party. Generally, the court is required to utilize the Guidelines; however, in certain circumstances the court may deviate from the Guidelines by entering specific written findings. In some situations the Child Support Guidelines do not apply. However, when the Guidelines do apply the court will utilize a “Child Support Guidelines Worksheet”.

How is visitation determined?

The Massachusetts courts generally encourage frequent and continuing contact between children and both parents. The children’s ages and the parents’ schedules are also considered. Visitations might include day time visits, overnight visits, weekend visits, school and summer vacation visits, weekday dinner visits and telephone visits. Usually a parenting plan will take into consideration all of the above in order to fashion a visitation arrangement which will be in the children’s best interests and which will afford the children an opportunity to spend as much time as possible with both parents.

Notwithstanding the above, when there has been abusive, violent, or neglectful behavior by a parent towards a child, there may be no visitation, or visitation may be required to be supervised. Sometimes when a parent, for whatever reason, has not seen a child for a lengthy period of time, the court may require that the initial visits be supervised and then reviewed periodically with the goal of gradually expanding and normalizing visits.

What can I do to enforce a Court Order for child support or visitation?

Once the Court has made a Temporary Order or a Permanent Order, or Judgment, both parties are obligated to comply with the Order. If one side does not comply with the Order, the other side can file a Complaint for Contempt seeking enforcement of the Order, as well as reimbursement for attorney’s fees. Contempts may be filed to enforce all kinds of Court Orders, including but not limited to child support, alimony, visitation, and property division.

Since the Court Order or Judgment was entered, the circumstances have significantly changed. Is there anything that I can do to change the Court’s Order?

Yes. If there has been a material or substantial change in the circumstances, then a Complaint for Modification may be filed, after which the Court can “modify” the previous Order. Modification proceedings are frequently filed in order to obtain more child support, as a result of the obligor obtaining employment or receiving substantially greater income. Likewise, Modifications can be filed in order to pay less child support if there has been a significant reduction in income. Based upon the circumstances, Modifications can also be filed to increase or decrease visitation with minor children. Modifications are also frequently filed years after the divorce in order to determine a parent’s obligation with regard to payment of college tuition.

If I already have an attorney, am I allowed to talk to another attorney about my case?

The client and the attorney need to be able to work well together, and agree upon an overall strategy, and upon the direction the case is going to take. Mutual trust between the attorney and the client is not only critical but essential. The attorney should also explain to the client approximately what the total legal fees are going to be, or at least how the legal fees are going to be calculated. All telephone calls to your attorney should be returned within 24 hours or less.

However, if the attorney and the client are not working well together, or if the case seems to be taking an unusual direction, or if you are consistently not doing well in Court, or in negotiations with the other party’s attorney, then you probably should consider obtaining a second opinion from an experienced attorney.

When Should a Complaint to Establish Paternity be filed in Court?

If a child is born out of wedlock and the parties are living together and the child’s father is properly identified on the child’s birth certificate, then a Complaint to Establish Paternity is probably not necessary. Otherwise, either parent may initiate a Court proceeding by way of a Complaint to Establish Paternity for the purpose of having an acknowledgement or adjudication of paternity made by the Court. Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. Accordingly, a Complaint to Establish Paternity in addition to determining who the father of the child is, can also establish Orders for child support, custody, visitation, health insurance, uninsured medical expenses and education.

After a Complaint to Establish Paternity is filed, the Court, on motion of either party, can order DNA/Genetic Marker Testing, the results of which are usually expressed as a statistical probability. If the report of such tests indicate a statistical probability of paternity of 97% or greater, there shall be a rebuttable presumption that the putative father is the father of such child. If a party refuses to submit to a Genetic Marker Test, the refusal shall be admissible and the Court may draw an adverse inference from such refusal.

If during the probable period of conception, the mother of the child was married to someone other than the putative father, the Court may still order Genetic Marker Testing after notice has been provided to the spouse or former spouse of mother.

In a Paternity proceeding, the Court may also award past or retroactive support from the time of birth until the Temporary or Permanent Order goes into effect.