I am the mother of a newborn child. My baby’s father and I are not married. We have not been to court about custody. Who has custody of our baby?
If there are no court orders concerning custody of your child and the mother and father are not married, the mother automatically has sole legal and physical custody of the child. See Question 4 below for a definition of custody.
Does it make any difference if the parties have signed a voluntary acknowledgment and the father is on the birth certificate?
No. If the parties are unmarried and a court has not determined custody, the mother automatically has sole legal and physical custody of the child, even if the parties have signed a voluntary acknowledgment form and the father’s name is on the birth certificate.
The Court issued an order for child support but did not issue any orders concerning custody. Who has custody in this situation?
If the parents are unmarried, the mother has sole legal and physical custody of the child unless there is a court order with different terms.
Is there more than one type of custody?
Yes. There are two types of custody - legal custody and physical custody.
Legal custody is the authority to make major decisions on behalf of your child. If the parents share legal custody they will work together to make major decisions in the child’s life about such issues as education, medical care and religion. If a parent has sole legal custody that parent shall have sole responsibility for making major decisions about these issues.
Physical custody is where the child lives. One parent may have sole physical custody of the child, which means that the child’s primary residence is with that parent, but can spend time with the other parent. Parents can also share joint physical custody, which means the children reside with each parent for certain periods of time
The type of custody which works best for your child depends a great deal on your relationship with the other parent. Joint custody arrangements require a great deal of cooperation between the parents and an ability to communicate with each other and make difficult decisions for your child.
There is a pamphlet on the General Information board called “Thinking about Parenting from the Practical Perspective” which may be helpful to you in thinking about custody.
Can unmarried parents agree to share custody of a child?
Yes. Unmarried parents can reach an agreement about custody and can ask to have their agreement made part of a court order. The judge must review the agreement and find that it is in the best interest of the child. There are sample agreement forms available.
Can we design our own agreement?
Yes. Any plan which you design is subject to a court’s approval, but the court tries to respects the wishes of parents. For example, some parents dislike the word “visitation.” You can write a parenting agreement which doesn’t use the word as long as you describe each parent’s access to the child clearly and in enough detail so that both parents understand the plan and can avoid arguments about it.
There is a pamphlet on the General Information board called “Thinking about Parenting from the Practical Perspective” which may be helpful to you in writing a parenting plan.
We are having trouble reaching an agreement. Can someone help us reach an agreement?
Yes. Mediation is one method available to you for solving disputes in the Probate and Family Court. There is a pamphlet called “Approved Programs for Mediation” which describes the process and lists programs approved by the Court. It is available on the Conflict Resolutions Options board located in the hallway of Court.
Can the court order joint custody if we don’t agree?
The court can do so, but it is usually not done.
The law in Massachusetts is that judge can only order joint custody
without an agreement if:
· the parents have successfully exercised joint responsibility for the
child before the case comes to court and
· the parents have the ability to communicate with each other and plan
with each other concerning the child’s best interest.
I am the father of a child. The mother and I are not married. I would like to have custody of our child. The mother does not agree. There are no custody orders at this time. What will the court consider in making a custody order when the mother and I do not agree?
The law requires that the judge consider the following things:
· which parent has been the primary caretaker for the child and the quality of the care;
· where and with whom the child has lived in the six months before coming to court;
· whether one or both parents has established a personal and parental relationship with the child; and
· whether one or both parents has exercised parental responsibility in the best interest of the child.