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Wednesday, November 6, 2013

Is it Easier to Remove a Child of Unmarried Parents from the Commonwealth?

This past summer we posted a full blog series on issues facing Unmarried Parents in Massachusetts.  While many issues that unmarried parents face may be different than those faced by married parents, most of the issues will be the same.  Parenting a child still comes with may of the same worries, financial obligations, affections, and lessons, regardless of the parents' relationship with each other.  However, when legal realities collide with economic or practical realities, there may be significant differences in how unmarried parents are treated.

Removal cases are one example of this disparity in Massachusetts.  Removal is a legal term of art for the simple concept of when one parent wants to move their residence out of state and take their child with them.  In Massachusetts, M.G.L. c. 208 Section 30 covers the removal of minor children in a divorce case, and prohibits removal without consent of both parents or order of the court.  We explore in what circumstances the court will grant such an order in this previous post.  The determination of the court in such cases turns on the custody arrangement of the parents and the benefits and disadvantages of the child to moving.

However, in the case of unmarried parents, the custody situation starts out much differently than in divorce cases.

If the father is not on the birth certificate, then the mother is by default the only legal parent and until and unless the father seeks a determination of parentage, the mother can remove the child to a different state.  If this happens and the father doesn't act immediately to seek a determination by the court, jurisdiction over custody could soon change to the other state, which would make it very difficult (if not impossible) to force her return.

If the father is on the birth certificate, but the parties have not been to court yet, there is still a different standard for determining joint legal custody in the case of unmarried parents.  In a divorce case, there is a presumption that the parties start with joint legal custody.  However, under the paternity statute, M.G.L. c. 209c Section 10 the court must make a finding of joint parenting to order joint legal custody to unmarried parents.

The process for applying this standard and making a determination relative to removal in the case of unmarried parents is outlined in the Smith v. McDonald case, a case where the Massachusetts Supreme Judicial Court overturned the trial court's ruling that a mother was required to return the child from New York to Massachusetts.

Visit our site for more information about the law relating to unmarried parents in Massachusetts.

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