Overcoming the Presumption of Parentage

Massachusetts Probate and Family Courts are statutorily authorized to establish parentage pursuant to complaints filed under M.G.L. c. 209C, § 5 (“209C”). Under 209C (specifically 209C, § 6(a)(1)), there exists a statutory presumption whereby the spouse of an individual that gives birth to a child is the presumptive parent of that child, so long as the two spouses were married while the delivering parent was pregnant, when the child was born, or if the child was born within 300 days of marriage’s termination by divorce. This legal presumption persists even if an individual from outside of the marriage is confirmed through genetic marker testing to be a biological parent of the child. In fact, 209C, § 5(a) actually prevents the third-party biological parent from bringing a 209C complaint to establish parentage when the delivering parent was/is married at the time of the child’s birth or conception, or the child’s birth occurs within 300 days of the marriage’s termination by divorce.

This legal presumption can be overcome when, first, the presumed parent and the delivering parent sign an Affidavit of Non-Parentage, which relinquishes the presumed parent’s parentage of the child. Thereafter, both the third-party biological parent and the delivering parent must sign a Voluntary Acknowledgement of Parentage. This scenario becomes complicated when the parties cannot or will not work together. A third-party biological parent in this predicament, who wants to assert parentage over the child, must file a separate action called a “complaint in equity.” The Supreme Judicial Court (“SJC”) has held in two key cases, C.C. v. A.B. (1990) and M.J.C. v. D.J. (1991), that the existence of a “substantial parent-child relationship” is the “controlling factor” in determining whether the third-party biological parent should be allowed to pursue a parentage action. The SJC found in C.C. v. A.B. that this inquiry involves a fact-based analysis, whereby the court considers the “emotional bonds, economic support, custody of the child, the extent of personal association, the commitment of the [third-party biological parent] to attending to the child’s needs, the consistency of the [third-party biological parent’s] expressed interest, the child’s name, the names listed on the birth certificate, and any other factors which bear on the nature of the alleged parent-child relationship.” The SJC found in C.C. v. A.B. that, because the “traditional family unit is at the core of our society,” the familial unit ought to “be protected against significant intrusion,” unless the third-party biological parent can demonstrate by clear and convincing evidence a substantial relationship with that parent’s biological child.

Since modern-day relationships come in many forms, it is important for all parties involved to understand the additional legal burden that a third-party biological parent faces in attempting to establish parentage of a child born to a delivering parent who is married.


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