Parentage and Custody Proceedings in Massachusetts Probate Courts

What is the Difference between a Complaint for Custody of Children and Complaint to Establish Parentage?

M.G.L. c. 209 provides for voluntary acknowledgment of paternity. Paternity actions are filed in the probate court where the child and at least one parent live and the burden of proof in such case is by “clear and convincing evidence” and if a trial is necessary there is no jury. (M.G.L. c. 209C §§4, 7).  There are two methods to establish that a person is the parent of a child born out of wedlock: 1) a voluntary acknowledgment of parentage filed with the court by both parents or 2) a judicial adjudication of paternity. The acknowledgment must be made in the presence of a notary public. (M.G.L. c. 209C §11(c)). An example of a voluntary acknowledgment is a birth certificate signed by both parties.  Moreover, M.G.L. c. 209C §11(a) provides that if the child is less than six months old, the filed acknowledgment creates a presumption of parentage. However, in this case each parent has one year from the date of the acknowledgment to request a blood and/or genetic marker test and the results can be introduced into evidence in the paternity case.

Actions to establish paternity and to obtain orders of support or orders for visitation or custody of a child born out of wedlock may be commenced by any one of the following people: 1) the mother, or 2) the presumed father, or 3) the child, or 4) the child’s guardian, next of kin, or other person standing in a parental relationship to the child, or 5) the personal representative of the mother if she had died or abandoned the child, or 6) the personal representative of the father if he died, or 7) the Department of Social Services or an agency licensed by it if the child is in their custody, or 8) The Department of Revenue acting on behalf of the Department of Public Welfare if the child is or was receiving public assistance. M.G.L. c. 209C §5(a). There is a caveat, if the mother of the child was or is married and the birth of the child occurs during the marriage or within 300 days of its termination by death, annulment or divorce, a complaint under M.G.L. c. 209 cannot be filed by a person presumed to be or alleging himself to be the father unless he is or was the husband of the mother at the time of the birth or conception of the child. M.G.L. c. 209C §5(a).

So what is the difference between a Complaint to Establish Paternity and a Complaint for Custody of Children?  The answer simply comes down to whether a voluntary acknowledgment of paternity has been signed by the father.  This means that a separate document acknowledging paternity exists in addition to the birth certificate.  If the father executed a voluntary declaration of paternity, either parent can file a Complaint for Custody of Children.  If he did not sign such document, then either parent must file a Complaint to Establish Paternity (i.e. a paternity case).  Within the paternity case, either party can seek custody orders and child support orders.  A paternity case allows the court to establish paternity judicially, by court order.

Paternity cases, custody matters, divorce, and other family law issues can be very confusing and you may feel overwhelmed with the amount of documents that need to be filed. However, the attorneys at Wilkinson and Finkbeiner are knowledgeable, experienced and equipped to handle any paternity case that you may have and are happy to help you.  Call or email us today for a free consultation.

We have locations in Boston, Massachusetts located at 2 Oliver Street, Ste. 302A, Boston, MA 02109 and on the South Coast at 555 Pleasant St., Ste. 2A, New Bedford, MA 02740.  We serve clients in Needham, Brookline and Cambridge and other surrounding areas near Boston, and Dartmouth, Plymouth and Westport and other surrounding areas on the South Coast.