Unmarried Parents and Unequal Treatment in Custody Disputes

Photo of Kristine Ann Cummings

Research published by the Centers for Disease Control and Prevention earlier this year found that nearly one in four first-born babies, or 22 percent, are born to unmarried parents living together. A growing cultural acceptance of having children out-of-wedlock has contributed to the dramatic jump in this statistic; the number of children born to unwed couples has nearly doubled since 2002.

While celebrity couples such as Brad Pitt and Angelina Jolie openly proclaim that you don’t need a ring to live happily ever after, the fairy-tale ends for many others, and custody disputes are common in both divorce and paternity actions. Regardless of their marital status, if parties can’t agree as to how they will parent their children after their relationship ends, the court will decide whether to award one or both parents “legal custody”, which is the right to make important decisions regarding the child, and “physical custody”, which defines with whom the child will reside.

Although the Supreme Court has ruled that unmarried fathers and children born out of wedlock are afforded the same constitutional protections as their counterparts in marriage, many states, including Massachusetts, treat unwed fathers differently than those who are married when it comes to decisions regarding a child’s care and custody.

Massachusetts courts apply different legal standards to divorcing parents and unmarried parents when determining whether legal custody should be granted to one parent or shared by both of the parties. While the divorce statute presumes that legal custody will be shared, the paternity statute presumes that the unmarried mother will retain sole legal and sole physical custody. Although an unwed father may challenge this presumption, absent agreement of the parties, a court may award joint legal custody only if it makes written findings that the parents “have successfully exercised joint responsibility for the child prior to the commencement of [legal] proceedings… and have the ability to communicate and plan with each other concerning the child’s best interests.” M.G.L. c. 209C, §10.

While having a child out-of-wedlock may no longer carry the social stigma it once did, Massachusetts courts continue to discriminate against unmarried fathers with respect to custody disputes. Because our custodial presumption favors the unwed mother over the father, unmarried fathers in Massachusetts will often face an uphill battle when a relationship sours and the parties are forced to duke it out in the Probate Court.


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