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Custody and Child Support Laws for Unmarried Couples

Custody for Unmarried ParentsRomantic relationships don’t always work out, and when children are involved, situations can become complicated. When romantic partners — whether married or not — have a child together, both parents are responsible for the child’s well-being.

For unmarried parents, the circumstances of a relationship can vary significantly. Some unmarried parents are part of a committed couple who live together, while others may spend time together but live in separate homes. Some couples break up and end up with other partners. Whatever the situation, a child benefits most by having two committed parents who are involved in her life.

When unmarried parents are unable to reach agreement regarding child custody, visitation and support, the Massachusetts courts get involved. Working with an experienced family law attorney is the best way to ensure a fair arrangement that most benefits children.

As in cases involving married parents, Massachusetts law considers four primary issues relating to parenthood by unmarried parents:

  • Establishment of paternity.
  • Custody arrangements.
  • Child support to be awarded.
  • Rights to spend time with the child.

Whether married or unmarried, an individual is considered to be a legal parent of a child if he or she is a biological parent or has adopted the child. For unmarried, legal parents, any disputes related to children are handled by the courts in the same way as if the parents were married. The courts always attempt to serve the best interests of a child, whether her parents are married or unmarried.

Establishing Paternity

For a child to have a legal father, paternity must be established; typically,  both parents sign a form either at the hospital or in the town clerk’s office at the time of the child’s birth. A parent also can request that a Massachusetts court order genetic testing to establish the child’s legal father.

Establishing paternity provides critical rights for a child:

  • The ability to access the medical history of the father if the child should become ill.
  • Financial support to assist in meeting the child’s needs.
  • The ability to share in the father’s benefits, including pensions, health insurance, inheritances and Social Security.

Child Custody

Courts may rule that both parents have custody of a child, referred to as shared or joint custody. In a joint custody arrangement, both parents have the same authority regarding a child’s medical care, schooling and other important decisions. Parents usually have shared physical custody, with the child spending some time with each parent.

In some cases, parents share joint legal custody, but one parent is designated as having primary physical custody of the child, with the other parent having a set parenting time to spend with the child. Parents wishing to file for custody should work with an experienced family law attorney.

In Massachusetts, courts use several criteria to establish custody of children born out of wedlock; custody can be awarded to the mother, the father or to both parents together. To award custody, courts consider:

  • How to best maintain the relationship between the child and her primary caregiver.
  • Whether the parents have established personal relationships with the child.
  • Where the child has lived in the six months prior to the custody case.

When both unmarried parents participate in the child’s care, Massachusetts family courts award joint custody if both parents have been successful in maintaining joint responsibility and if the parents are able to effectively communicate with each other and make plans that are in the child’s best interests.

When custody is contested in Massachusetts, a parent seeking shared legal or physical custody is required to submit a parenting plan, which includes:

  • Ways in which disputes between the parents will be resolved.
  • The expected time periods in which the child will spend time with each parent, including holidays and school vacations.
  • The child’s medical care and health.
  • The child’s schooling.

Child Support

Legal parents are always required to support their children, whether or not they have been married to the child’s other parent. In cases in which parents have different income levels or if one parent bears most of the financial costs of child care, a family law court will require the other parent to pay child support.

The court determines the amount of child support to be paid based on a number of factors, including:

  • The income of each parent.
  • What each parent spends on housing, health care and other necessary expenses.
  • The cost of raising the child, including medical bills and school tuition.

The court can modify a child support order if a parent’s income or the child’s needs change. When a parent refuses to pay child support on a voluntary basis, a parent with custody can sue the other parent for court-ordered child support. A parent who does not pay can be prosecuted under the state’s criminal laws.

Visitation Rights

Visitation, or parenting time as it is more commonly known in Massachusetts, is different from legal custody, which includes the right to make important decisions regarding a child’s education, religion and welfare. Instead, visitation provides a way for a parent who does not live with a child to spend time together.

As with custody arrangements, parents can agree to a parenting schedule voluntarily. However, if one parent refuses to negotiate, the other parent has the right to seek a court order. In ruling on a visitation arrangement, the court will consider several factors:

  • The child’s age and stage of development.
  • Any special needs of the child.
  • The physical proximity of the parents’ homes.
  • The status of the relationship between the parents.
  • The work schedule of the parents.
  • Any personal problems of one or both parents, including domestic violence, child abuse, a criminal record or a history of substance abuse.

Support/Custody for Unmarried Parents FAQs

What if I’m not sure about the father of my child?

We understand there are situations in which paternity of a child is in question. It is always best to establish who the biological and lawful father is to ensure your child receives necessary support throughout their life. You can pursue genetic testing orders for more than one person to establish paternity for your child. Possible fathers also can seek a DNA test to prove their parenthood.

Is a mother more likely to win full custody?

Massachusetts judges don’t decide child custody based on a parent’s gender, which means mothers are not more likely to win sole custody under the law. Parents have equal rights to legal and physical child custody. The judge will determine whether parents should share custody, or one parent should have a majority or sole custody based on the best interest of the child. Even unmarried parents of infants can create parenting plans that consider breast feeding and the child’s other immediate needs.

Is child custody decided differently for unmarried parents?

When a child is born to unmarried parents, the mother, by default, has full custody. However, once paternity is established, either voluntarily or through genetic testing, both parents have an equal right to custody. Then, how a judge determines child custody is the same for divorcing or unmarried parents. The judge will consider many factors to determine what’s in the child’s best interest, including who has provided for the child’s needs up to this point, the child’s relationship with both parents, each parent’s household, any history of physical abuse, any history of a parent’s alcohol or drug abuse, and more.

Does the father always pay child support?

No, a father is not automatically required to pay a child’s mother support. Massachusetts child support calculations are based on several factors, including each parent’s income, how much each parent spends on necessary expenses, the cost of raising a child, and how much time the child spends with each parent. The parent who has the child the lesser amount of time typically pays the other parent support, which could be the father or the mother. When parents have equal parenting time with their child, then their differing income levels can determine who pays support.

What if I can’t afford the child support order?

Child support is a rather straightforward calculation, but we understand it is still sometimes more than your budget can handle. Because you can face penalties for not paying, keep up with your child support payments while you consult a lawyer about modifying the order. We can pursue a lower amount based on your financial circumstances. We will have to provide a significant reason to modify the order and depart from the Massachusetts’ child support calculation. 

Work with Experienced Family Law Attorneys

Whether parents are married or unmarried, working out arrangements for child custody, support and visitation can be fraught with complex legal issues. In any resolution, keeping a child’s best interests in mind is of the utmost importance. If you are involved in a dispute regarding your child’s care, it’s best to seek assistance from a qualified attorney with significant experience in family law matters. For a free consultation, contact Infinity Law Group.