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Tuesday, December 29, 2015

99.9% Probability of Paternity - Who is a Legal Parent? Part 4

As discussed in our previous post, in order to include the father's name on the birth certificate he and the mother must sign a Voluntary Acknowledgment of Paternity.  If a mother or father refuses to sign the Voluntary Acknowledgement of Paternity, then paternity can only be established by court action and the mother alone will appear on the birth certificate until there is an order of the court to add the father.

If the father or mother wants to establish paternity of a child in Massachusetts, then either party can file a Complaint to Establish Paternity with the Probate and Family Court.  If the presumed father denies or is unsure that he is the father of the child, the Department of Revenue Child Support Enforcement Division can perform a paternity test if the mother requests DOR services. This usually takes 6-8 weeks, and can be required by the court if the presumed father refuses to participate.  The parties can also obtain a private test which is usually faster but will likely cost approximately $600.

Once the test is performed, the court can adjudicate the father to be a legal parent based on the results of the test.  While most genetic marker tests will return a probability of 0% or 99.9% the legal standard in Massachusetts only requires greater than 97% certainty:
"If such report indicates a statistical probability of paternity of ninety-seven percent or greater, there shall be a rebuttable presumption that the putative father is the father of such child and, upon motion of any party or on its own motion, the court shall issue a temporary order of support." - M.G.L. c. 209C s 17 (thank you to Jonathan Eaton of Finn & Eaton for pointing us to this statute)
Of course, whether established in court or voluntarily, legal parentage of a child is only step 1.  Once the court or two parents have recognized the legal rights and obligations of the father, the parents need to define how they will coparent and support the child.  Click here for more information on those next steps.

Previous Post: UnMarried with Children - Who is a Legal Parent? Part 3

Next Post: Adoption - Who is a Legal Parent? Part 5

Tuesday, December 22, 2015

UnMarried with Children - Who is a Legal Parent? Part 3

Unmarried mothers in Massachusetts are presumed to be the legal and physical custodian of a child without going to court.  Unmarried fathers in Massachusetts are not provided with any legal or physical custody rights without going to court, unless they are added to the Birth Certificate at the time of the child's birth.  This is despite the fact that a child support obligation can begin to accrue upon the birth of the child even if the father is unaware of their existence or not involved in the child's life.

The Birth Certificate is completed with information provided by the mother of the baby. If she is unmarried, then she can request the father's name be included. In order to include the father's name he must sign a Voluntary Acknowledgment of Paternity and then his name will appear on the birth certificate.

Signing a Voluntary Acknowledgement has significant legal ramifications. Even if a father is not the biological father, signing the Voluntary Acknowledgement could make him the legal father, with potential rights and obligations for the child's entire childhood until emancipation.

If a mother or father refuses to sign the Voluntary Acknowledgement of Paternity, then paternity can only be established by court action and the mother alone will appear on the birth certificate until there is an order of the court which will be addressed in our next post.

Of course, whether established in court or voluntarily, legal parentage of a child is only step 1.  Once the court or two parents have recognized the legal rights and obligations of the father, the parents need to define how they will co-parent and support the child.  Click here for more information on those next steps.

Previous Post: Married with Children - Who is a Legal Parent? Part 2

Next Post: 99.9% Probability of Paternity - Who is a Legal Parent? Part 4

Friday, December 18, 2015

Married with Children - Who is a Legal Parent? Part 2

Post by Valerie Qian.  Valerie is an Associate at Skylark Law & Mediation, PC.  Valerie's practice includes family law & divorce representation, mediation, and collaborative divorce.

The Presumption of Legal Parentage to a child born of a Marriage

Is it presumed that a child who is born into a marriage is legally the child of the other spouse of the marriage?  The short answer is yes, regardless of whether the child is biologically related to the other spouse.

The statute governing this question in Massachusetts is Massachusetts General Laws Chapter 209C, Section 6.  Moreover, any child born as a result of artificial insemination with spousal consent is considered to be the legal child of the consenting spouse per G. L. c. 46, § 4B.

Chapter 209C, Section 6 states that a man is presumed to be the father of a child if he is married to the mother of a child at the time that a child is born. He is also presumed to be the father of a child if the child is born within 300 days after a marriage ends, whether it ends by divorce, annulment, or death.

A man may also be presumed to be the father of a child if he attempts – even if he ultimately fails – to solemnize a marriage in compliance with the laws of the Commonwealth – between himself and the mother of the child. If this attempted marriage takes place before the child is born, and the child is born during the attempted marriage or within 300 days after it ends, the man may be presumed to be the father of the child.

This means that even if a marriage is later declared invalid there may still be a presumption that the attempted husband is a father.  Chapter 209C, Section 6 outlines this presumption in more depth, but a presumption can also be overcome.  Chapter 209C requires the presumed father to be included in an action trying to establish a different father, except "a husband or former husband shall not be required to be joined as a party if non-paternity of the child has previously been adjudicated" in another proceeding.

This presumption, though written in the statute in traditional gender roles, has been extended to same sex marriages per Hunter v. Rose.

Previous Post: Who is a Legal Parent: Part 1

Next Post: UnMarried with Children - Who is a Legal Parent? Part 3

Thursday, December 17, 2015

Who is a Legal Parent? Part 1

Many have tried to frame the debate over same-sex marriage or LGBT rights to be a debate over the changing definition of parents and family.  But the truth is that the definition of family has been constantly changing and evolving and the definition of a parent has always differed from family to family.  Some people are raised by a male and female parent, and others are raised by a grandparent, or one parent, or two female or two male parents.  And many children have more than two people that function as parents and role models.

The definition of biological parent is clear; requiring a male and female genetic component to create a child.  However, defining the parents of a child is more complicated and can involve legal, psychological, ethical and biological components.  A parent might be a gestational parent, a biological parent, a legal parent, or even a parent by their actions, regardless of relationship.  And these definitions can and typically do overlap.

When these roles don't overlap exactly, the law can end up limiting or expanding the rights and obligations of a parent and sometimes the definition of "legal parent" can override the other definitions, taking children away from someone who might otherwise be considered a parent.  Legal parentage comes with rights and obligations such as the right of access or parenting time with the child, and possibly the obligation of financially supporting the child.  Because these rights and obligations can have a huge impact on the welfare and health of a child it is important to understand the basics of who is and who is not a "legal parent."

In this blog series we will explore this definition of "legal parent" and how it can limit or expand the roles of people otherwise acting as parents to a child.   We will explore the different ways that a parent can become a legal parent, whether or not they are a biological parent or play an active parental role in the child's life.

Who is a Legal Parent?

Part 2: Married with Children (post by Valerie Kua): The Presumption of Legal Parentage to a child born of a Marriage;

Part 3: UnMarried with Children: The Voluntary Acknowledgment of Parentage;

Part 4: 99.9% Probability of Paternity: The Judgment of Paternity and Genetic Market Testing;

Part 5: Adoption (post from Julie Tolek): Becoming the legal parent of a non-biological child through the adoption process (including step-parent adoption);

Part 6: Co-Parent Adoption (guest post from Joyce Kauffman and Patience Crozier): Adoptions in a co-parenting situation, and specifically same-sex relationships and marriages;

Part 7: Three's Company (post from Julie Tolek): Adoptions in a three parent situation;

Plus 3 posts discussing roles that include partial parenting rights:

Part 8: De Facto Parents: Parents who have no biological relation to the child, but have participated in the child’s life as a member of the child’s family;

Part 9: Grandparent Visitation Rights v. De Facto Parents: Grandparent visitation rights in Massachusetts;

Part 10: Guardianship: A person appointed by the court to make non-financial decisions for another person.

Redux: Partanen v. Gallagher - A child's presumptive parent may establish a legal parenting relationship under G. L. c. 209C, § 6 (a) (4), even in the absence of a biological relationship with the child.
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