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

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