Mothers have automatic custody of a newborn child born out of wedlock. A father however must fight for rights to their baby. The mother continues to have custody of this child even after the father establishes paternity, until an order or judgment of a probate and family court according to Massachusetts General Assembly statutes.
The father has to fight for an order to protect his time and rights to his child. The mother does not. This can be incredibly expensive.
Kurt Russell was born in Massachusetts and was never married to Goldie Hawn. If he had stayed in Massachusetts and he and Goldie had split, Goldie would have had 100% custody unless he fought her for it. Kate Hudson and her boyfriend, Danny Fujikawa, just had their first child on October 2, 2018. Unwed fathers do not have rights to their babies under Massachusetts law. (Fortunately for Danny, he and Kate do not live in Massachusetts.)
What does the law say?
Chapter 209c. Section 10. (b) 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 voluntary acknowledgment of parentage. (emphasis added)
Did you catch that one? Even after “an adjudication of paternity or voluntary acknowledgment of parentage” “the mother shall continue to have custody of a child.”
Founding Fathers Born in Massachusetts Would not Have Qualified for Custody of their Children
John Adams and Benjamin Franklin, both Massachusetts born, under today’s laws had no rights to their children, and would have been at extreme disadvantage for equal rights based on their careers. “Most of John Adams’ children were born while he was away serving in the Continental Congress and he was also gone when Abigail suffered the miscarriage in 1777.” Under the current laws, these two founding fathers would not have had the influence that they had on their children. One of John Adam’s son’s went on to become the sixth president of the United States, John Quincy Adams. The best interest rules today possibly would have changed John Adam’s ability to influence his children, two of them he brought with him on some of his travels. If he had a judge restrict his time with his children to visits that could only take place where the mother resided, if he could only see his children in the state where the mother lived, would our Sixth President have been someone else? Our Founding Father’s surely would be appalled that the states are ignoring the Supreme law of the land.
Who has custody if the court has not made a custody order?
The mother of a child born to parents who are not married to each other automatically has custody of the child until such time as the court makes a custody order.
This is called having custody “as a matter of law.” In this situation the mother will not have a custody order to prove that she has custody.
How does the court decide which parent should have custody?
In giving custody to one of the parents, the court is supposed to as much as possible, preserve (keep up) the relationship between the child and the primary caretaker parent;
consider where and with whom the child has lived during the six months right before the paternity case was filed;
consider whether one or both of the parents has established a personal and parental relationship with the child; and
consider whether one or both of the parents has exercised parental responsibility in the child’s best interests.
How does the court decide that the parents should have joint custody?
The court is supposed to give the parents joint custody only if:
the parents have made an agreement to have joint custody; or
the court decides that the parents have successfully exercised joint responsibility for the child before the case was filed and have the ability to communicate and plan with each other concerning what’s best for the child.
Is the court supposed to consider domestic violence when it makes a custody order?
Yes.
You can read more from the Massachusetts Legal Help website here: https://www.masslegalhelp.org/children-and-families/paternity-cases-and-custody
What does this mean for fathers and children’s constitutional rights?
As soon as a father establishes paternity that father should be receiving the exact same respect for his rights to that baby. The courts have decided however that the parents rights cancel each other out (read a related article on this here) and that is how the court’s justify selecting one parent over the other. In this case, the law selects only the mother. In other states, the law selects one parent as primary and the other as noncustodial and renders that parent a visitor. All of these practices are unconstitutional. They only continue because attorneys no longer challenge unjust laws the way they used to back in the day. Attorneys used to be warriors and would challenge injustice. Ruth Bader Ginsburg is a great example of this warrior attitude. She went to law school during a time that women were expected to be subordinate to men and when she attended Harvard law school she was seen as taking a valuable place away from a man. She eventually switched to Columbia university where she took on a case jointly with the ACLU and won a taxation case for a man who had chosen to be the stay-at-home caretaker for his elderly mother. Because he was not a woman, and was filling a role that was defined for only a woman, he was denied a tax credit. Ginbsburg saw this case as an opportunity to get equal protection of the laws for women where other cases had failed. Because of that prior case however Ginsburg had difficulty finding support for her position and desire to litigate this case from other attorneys. She persisted however and ultimately prevailed. Just as fathers will prevail in overturning this unconstitutional designation of custody as well. As soon as a father acknowledges his paternity it should be just as automatic that the father has equal custody to the child as well. The law should not be allowed to presume that the father is not interested in the child. It does not presume this about the mother.
What should a father do?
Fathers should:
- Get an agreement for equal time and rights with the mother while you two are still in agreement if you can. Don’t even wait for your child to be born if you have that option. Explain to the mother that the law does not treat you like it does the mother and therefore you need to acknowledge that you are the father as early as possible and establish that you are expecting protection of the law the same way that it protects the mother. In fact, if I was a man, before I slept with any woman unprotected I would be getting her to sign an agreement with you that if a baby is produced from this union that you are acknowledged as the father and that you expect the law to protect your right to custody and that you are entitled to the least restrictive parenting plan which is equal. Then if a child is born file that with the Court under the paternity acknowledgment procedure, with a motion to protest that you are being burdened with the expense and an objection to the state forcing you to qualify anymore than just acknowledging you are the father. Anything more is unconstitutional. The Constitution only requires that you have established that you are the biological parent and that you have a relationship with that child.
a. If you agree to the mother having more time with the child while the mother nurses make sure you write into the agreement that this is not a waiver of your time and rights but that you are granting permission for the mother to exercise your time and rights during your time during the specified periods of that agreement. Put a clause that you can withdraw that agreement at any time, and that this is a short-term agreement to facilitate the child’s nursing. Put that you just have to notice the mother and then after a two-week transition period (or whatever period of time works for you, write whatever period you think is best, the child will then spend equal nights and days with you.) Alternatively, if you choose to try nursing the baby yourself during your time as well (see the article related – father breastfeeding baby) then you might be exercising equal time right away. (You and the mother will need to decide if what you feed the child will be store bought formula or whether the mother will pump and provide you with frozen breast milk to use in your suction cup nipple, syringe-filled formula filled nursing system.)
- Put you name on the birth certificate when the child is born. The birth certificate can be used as proof of paternity. (Check with an attorney and make sure you follow your state’s requirement for getting that paternity acknowledgment protected.)
- File an objection to the state using your paternity acknowledgment for ordering child support. (We have a pre-trial framing motion to help you understand the arguments you will be faced with to protect yourself from the state taking advantage of you to earn money from Title IV-D.) Title IV-D is a federal incentive program for the state. When the state issues a child support order, they get paid from the federal government. The federal government set this up to offset the cost of the welfare program. Even though the mother may not ever be a candidate for welfare it keeps that program free for the states when they make you pay for all those who do end up on welfare. Those who are poverty stricken cannot re-pay the state, and the amount of taxes being collected is not sufficient to pay for all the social programs that cater to the impoverished. The state essentially has found a way to punish you for not being with that mother in a marital relationship as the state prefers, and imposes an additional cost on you for making dis-favored choices.
- If you do open a case to establish paternity, include the pre-trial framing motion (found in the membership) (or declaratory judgment motion package, whichever is applicable for you, and customize the content to match your particular case and facts, you can get our help here). Be prepared to challenge the court if they try to appoint any court-appointed experts for purposes of invading your privacy rights and for making you qualify to be a parent. The court may try to order a Guardian ad Litem (also called a GAL), an amicus, a custody evaluator, a court facilitator, or a parenting coordinator. These are just ways for the court to make money for those who work in the child custody system to take rights away from you, make you pay for the rights or taking of them, and to take control over your life. These appointments can put you at risk of going to jail and subject you to financial devastation and bankruptcy. The pre-trial framing motion is an example of how to force your court to do the right thing and to help the court stop getting these cases wrong. Help the court get it right and prevent error. Best interest of the child, or otherwise called BIC is causing children to end up in majority time situations with one or other of the parents. Sometimes the children end up with the more aggressive parent, the one who might even be verbally abusive, or be the stricter parent. And sometimes the children end up with the softer parent or the pushover parent, and without much structure or discipline. Either way, your way is going to be marginalized and your influence muted. If you can protect the child to their access to you and the other parent has equal increments of time or as close to it as possible, you have provided the child with a break from the other parenting style and you give that child opportunity to learn from both of its parents. If you feel that it is not as healthy or beneficial for the child to spend a lot of time with the other parent, when you use the constitutional protections, you are protecting that child from the Court using their biases and personal beliefs and reducing the risk that the court might prefer to minimize your influence. The constitution protects you from the court choosing one parent’s style over the other. Isn’t it better if your child at least gets half the time with you if you don’t agree with the other parent’s parenting styles as opposed to taking a chance that the court could prefer their style over yours and give that parent the majority of the time. If you think this is a better option than only getting your child for four days a month, you will want to use the protection the Constitution provides. While we don’t want you to look at the time your child has with you as a break from the other parent in a negative way, if that is the reality it is. However, we suggest that you are not spending time convincing the child that their time with the other parent should be guarded or that they shouldn’t like the other parent. This could alienate the child from the other parent. And the way we see this is, if you create circumstances that cause the child to act on your influence of them about the other parent, and the child starts to refuse to go to that parent, or starts acting up more and more with that other parent and making that other parent’s time miserable, you have interfered with that parent-child relationship. You would be guilty of parental alienation. You might claim you are protecting that child, but you might be hurting them more. If you were not able to prove that the other parent was a danger to the child to the court or unfit to the court, then you need to think about the next best way you can provide for that child. The Constitution provides protection to the child from losing you. If you don’t understand or know how this works, we encourage you to get a membership and learn about this as an alternative to the traditional way that guarantees the child loses. You and your child deserve this protection, you are entitled to this protection, and your future with your child, your parent-child bond depends on this protection.
- Challenge the statute as unconstitutional and ask the trial court judge to find that the statute no longer applies to you because you have acknowledged that you are the father, love the child, and want just as much as the mother to care for that child. Therefore you should be seen to have the same protections that the mother has. Where the statute says that once paternity is established and acknowledged you should not have to wait for further approval of the court, you should be entitled to the custody period. And because you and the mother cannot exercise custody at the same time, the law should immediately protect you to the least restrictive parenting plan and have a standard default plan which is equal time. It is only when you and the mother cannot agree on how that parenting plan will be carried out that you need the court to sign off on an equal parenting plan for you. Naturally, the options of how that time is split is where the dispute will come in, and where the age of the child comes in. If you are suggesting a year on and year off for a newborn, that is where the court comes in to establish a plan that is reasonable for that child’s age. This should not mean restricting you because of the child’s age from equal, but rather perhaps establishing that each of you will have the baby every other day so that the baby is not away from either parent for very long. Remember that you are arguing that you are the father of that child, your relationship was established at birth when you recognized the child as yours and when you committed to be responsible to that child. You are arguing that under the supreme law of the land, you and the mother are equals to that child, and you are challenging any state law that treats you and the mother different. Object to the state requiring you to spend money and subject you to adversarial litigation over your rights when the mother was not required to do so for the law to recognize and respect her rights. Demand that the state protect your rights and your child’s rights to be with you just as strongly as the law is protecting the mother. When you have removed the question of whether you are the father, you need the law to provide you with the same protection. See RonBPalmer’s post for more on this concept. (Make sure you follow your state’s requirements for challenging a statute. Look in the Government Code in your state. If you cannot find that, ask an attorney, or ask a legislator if they can find the rules for you regarding challenging a statute.)
If you need more information and research for protection of your parental rights, and you will, there is a membership site where you can learn more here. Every person’s case is different, your case is fact driven and fact specific. We have many, many strategies. The information above is just a sliver of where to start and may not be everything you need. The facts of your case could change the strategy. We have found unfortunately that the legal field has been tainted with bias and denial that your fundamental rights receive the individual protection of due process in accordance with the fundamental rights that are involved with raising a child to custody cases involving two fit parents. Therefore, you will have to learn this part and insist that your attorney provide you with these protections. Ignoring these rights could cost you years of litigation and thousands more dollars. And most importantly years lost with your child and possibly a lifetime. You can learn how to use the Constitution to maximize this protection here.*
DISCLAIMER: We are not attorneys, not trained in the law, and are not a substitute for an attorney. Any information you learn from us is intended for you to use in coordination with an attorney. While we are providing material and information that is intended to teach a pro se litigant, it is not intended to be legal advice for any particular case, it is not intended to prepare your case, it is intended to help you learn enough about your rights so that you can work with an attorney to receive the protections that attorneys have been ignoring. Anything you use from our pages, website, membership portal, videos, etc. is at your own risk, you are responsible for what you use in your own case and for the results that you get, and for any consequences. Seek the advice of an attorney on the legal technical requirements for anything you may want to use.
