Legal Question in Family Law in Massachusetts

Re: 9/10 to the law

Mr. Roth and I disagree rarely, but here we disagree.

However, he -is- correct in this: it would be best to obtain a court's custody order confirming the implicit custody of c. 209C.

Re: 9/10 to the law

I quickly reviewed the statute, c. 209C.

In the absence of a finding of paternity (by a court or by inclusion on a birth certificate), there is no question that my initial answer was correct. In that instance, only the mother is an "adjudicated" parent. the putative (alleged) father is a third party, just as any other man would be.

As to custody, UNLESS the Court has awarded custody after the filing of an action, c. 209C s. 10(b) controls:

"Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or a voluntary acknowledgment of parentage."

I thus stand by my original answer: a child born out of wedlock in Massachusetts, or brought her by its mother PRIOR to an adjudication or acknowledgment, is by c. 209C in the sole legal and physical custody of its mother. Unless a COURT grants the father custody, any act by the father depriving the mother of custody is potentially criminal, and likely to cause the courts to order the child's return.

It is of course possible for the mother to "sign off" on custody -- but she can also hand a child off to parents and such. In any of these cases, the person who obtains the custody needs confirmation from the court to defeat the mother's rights.

Thus, a mother who allows a brief visitation to a putative father is NOT going to face a "no recourse" situation if the father essentially refuses to return the child after the visitation -- unless he has got a COURT behind him. Even then, he may find that he will get no where if, for example, he turns to the court of the wrong state.

Re: 9/10 to the law

Who came up with THIS silliness and told it to you?

A child born out of wedlock in Massachusetts is in the sole physical and legal custody of its mother unless a court determines otherwise after a full and proper hearing. Under the facts you suggest, the father would be guilty of "custodial interference" under Massachusetts law, a form of parental kidnapping. The Massachusetts court would retain jurisdiction in Massachusetts under civil law as well.

The father -- or ANYONE acting without a court order -- would be arrested and tried criminally, because the mother would report this as parental kidnapping. In addition, the courts of the state to which father fled would agree that Massachusetts had jurisdiction over the child, because Federal law AND the laws of every other state mandates this under these facts.

Re: 9/10 to the law

No, that is not true. The mother should contact an attorney and seek a custody order.